A Link to Infringement

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The publication of this comment is part of a cross-posting agreement between Medialaws and IPilogue (IP Osgoode Law School blog): http://www.iposgoode.ca/2013/02/a-link-to-infringement/

Football Dataco Ltd and others v Stan James plc and others v Sportradar Gmbh and another (hereafter “Dataco”) involved the use of a database by an unauthorized person.  While the decision itself deals primarily with database rights, the court makes one finding which has implications outside of the area of database protection. – See more at: http://www.iposgoode.ca/ipilogue/page/2/#sthash.YgsbxxfT.dpuf

That part of the decision dealt with whether a website provider could be liable for breach of database protection by providing a link which, if accessed, would necessarily result in infringement. The English Court of Appeal found that there would be liability for such a person in that scenario.

Stan James (bookmakers) are website providers whose website allowed users to access an entire database of information which neither the users nor Stan James had a right to access.  On the Stan James website, there was links for “Live Scores” which, if clicked, downloaded an entire database on European football (compiled by FDC) onto a user’s computer.  Though the information was downloaded in an encrypted form, a user could decrypt individual data sets through subsequent links on the Stan James website.  This type of download was found to be infringement.  The court also found that when infringement necessarily occurs as a result of a user clicking a link on a website both the user and the website provider will be liable for infringement.

The court came to this judgment by drawing a distinction between websites that might infringe database rights and websites which will necessarily infringe rights if used in the standard way.  For example, the Justice used the example of someone using a website such as EBay to link to protected materials and distinguished that at law from the nature of the Stan James website.  Individual users of EBay might use the website in order to violate protections on databases or infringe copyright.  Therefore, the EBay website provider is not directly responsible for what user’s might use their website for.  In the case of the Stan James website, it was the website provider themselves who was supplying links to infringing materials.  It was also important that Stan James was regarded in the case as a primary infringer rather than a secondary one.  This finding allowed the court to dismiss the defence of innocence, where Stan James argued against liability on the grounds that they were not aware the database was downloaded to the user’s computer.

The decision is important for a number of reasons.  First, it reiterates the position that a truly neutral party, who simply transfers user generated content but is unaware as to whether that content is infringement or not, is not liable for the infringement.  For example, Google would not be liable for breaches of copyright which result from Google images searches; however, the website providers hosting the infringing content would likely be held liable.  Second, it stands for the position that website providers who publish links to infringing materials are liable for infringement.  And lastly, as discussed in the case, it stands for the position that ignorance of the infringement is not a defence to primary infringement findings.

This case serves as a warning to website providers to be extremely careful when creating links to other materials.  If clicking on one of those links necessarily results in infringement, you will be liable regardless of whether you knew the information was protected or not.

A similar case regarding liability for links on a website arose in Crookes v. Newton.  In that case the court suggested that posting a link to defamatory statements could be considered defamation, but only when the hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content.  With the addition of this recent case, the argument that you can be responsible for the materials that you provide links for on your website is all the more persuasive.

Findings such as these simply stand for the position that providing links to material is fundamentally the same as offering that material on your own website.  I consider that to be a reasonable thing.  There should not be a loophole in our system of law which allows you to avoid liability while at the same time benefit from legally actionable materials.  There is no doubt that Stan James benefitted from its links to football scores and other info with increased traffic to the site.  Making these people liable for breaching protected rights is simply logical.

- See more at: http://www.iposgoode.ca/ipilogue/page/2/#sthash.YgsbxxfT.dpuf

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