A recent Israel court ruling stated that linking to copyright infringing content does not constitute a direct copyright infringement (CA 567-08-09 ALIS – Association for the protection of cinematic works v. Rotter.net Ltd) was quite an interesting one. Alis, the Israeli equivalent of the MPAA sought a popular forum website, Rotter.net, in regards to user generated content in two of its popular forums: Downloads and Movies. Alis’ claim was that by providing links to infringing content, Rotter is liable for direct infringement.
The court recognized that notice and takedown is the correct way to handle user generated content and ruled that Rotter is not liable for any user generated content as long as it removes the infringing content promptly. By ruling this way, the court created the so requested connection between the recent Supreme Court ruling in CA 5977/07 Hebrew University v. Schoken (which dealt with the university’s liability for coursebooks distributed by students creating infringing content) and the virtual world (and in regards to notice and takedown under Israeli law, see RCA 1700/10 Avi Roy Dubitzky v. Liav Shapira, C 1559-/05 Hemda Gilad v. Netvision and C 64054/04 Al Hashulchan v. Ort).
However, the main issue with notice and takedown was the amount of actual knowledge the court required: The court determined that it is not enough that Rotter is reported that a specific forum has infringing content, but they have to have actual knowledge of any specific infringement. However, the court opened a latch for “bad forums”, meaning that a place where the service provider knew about a material amount of infringements it shall be liable to the forum’s activity. In the court’s words “the presumption is that the website’s owner is aware that he is assisting in the existence of direct infringements, and that such assistance is actual and material contribution to them. Therefore, the burden is on that website owner where a suspected forum exists to prove that the existence of the forum serves a legitimate purpose or that he was unaware of the infringing activity (and if so, he shall not be liable until he was notified that this is a “bad forum”“. Therefore, the court actually narrowed the service provider exemption from liability.
In the court’s opinion, “as a rule of thumb, we can determine that a closed forum, where in a specific time there are more than 10 links to infringing sites, and that the messages including links to infringing sites constitute more than a quarter of the substantial content of the forum (meaning, messages that are not information requests or responses to other messages), should be suspected as a “bad forum”“. Meaning, the court determines that a forum that has more than 10 infringing links, and when these links are more than a quarter of the content, even if the website owner had no actual knowledge, he may be liable. This ruling may be dangerous, and having being a district court one, we should put our fingers on the pulse to see how it goes in the future.
From where did the court conclude the numbers? why didn’t he include the number of absolute postings in the website as a criteria (in contrast of forum messages), why didn’t it inquire whether opening a forum requires the owner’s consent? all these questions were irrelevant to the ruling and were not included in the court’s opinion.
However, this part of the ruling is not the material part, but only the part easy to understand. The important decision was in the question whether directly linking to an infringing content on another site constitutes as direct infringement. Here is the time and place to remember how copyright works: actually, there are specific actions where the copyright holder is the only person entitled to perform, and the rest of the actions are allowed. These are specified in clause 11 to the Copyright Act. One of these rights, in Israel, is making a work available to the public.
Alice tried to claim that linking is making a work available to the public, defined as “performing an action in a work so that people from the public may have access from a place and time of their choice”. However, the court rejected this claim and said: “creating a link which transfers the user directly to the infringing site (either to the homepage or an internal page) is not “making a work available” … First, creating the link is not “performing an action in a work”; second, the link, by itself eases people from the public to locate the infringing work, but it does not create the access. In other words, the work has already been made available by the infringing site and therefore linking to that site cannot be deemed as “making a work available”“.
The court determined that there is no actual direct infringement (but may allow contributory, secondary or vicarious ones) by linking, this is a blessed interpretation of the law, which was not always acknowledged by the court (it was, however, ruled so in 11-cv-20427 Disney v Hotfile).
The meaning of this ruling may be relevant, however, to other torts. For example, could a person being slandered in a website sue all people directly linking to it? It seems that in such case, this ruling goes in favor of the actual logic.