Cue the Ominous Music

Da • da • daaaaaaaaah...

• A copyright case decided Thursday in Europe continues to emphasize that territorial rights within the European Union are dead. They are deceased. They are ex-restrictions. In Svensson v. Retriever Sverige AB, No. C-466/12 (CJEU 13 Feb 2014), the Court held that — as a matter of European law — a website that contains mere links to otherwise publicly available material in an authorized form does not infringe copyrights. The IPKat offers a somewhat more detailed analysis, but it doesn't reach the territorial rights issue... because territorial rights have to be teased out of the fact pattern in a way that European lawyers (and judges) seldom make clear.

  The ominous music comes from the sequel. Certain morons self-interested bastards "copyright activists" are going to claim that Svensson means that all link sites are inherently acceptable under European law. Of course, actually reading the damned opinion would rather definitively refute that:

  27. In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

  28. Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

  29. Such a finding cannot be called in question were the referring court to find, although this is not clear from the documents before the Court, that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.

  30. That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public.

  Admittedly, this is not very good writing, and it displays little perception of what actual battles over copyright on/around/through the 'net look like. It is, however, clear: The links are valid and noninfringing only because they point to authorized sources. Any restrictions — paywalls, timing restrictions, whatever — that are circumvented by the links do constitute a new "communication to the public," and hence a potential copyright infringement. That means that link sites pointing to pirate copies are in just as much trouble as ever, particularly since several lower-European-court decisions in the last few years have imported the "inducing infringement" meme of the US Grokster decision.

• Also on the foreign copyright front, the Australian Law Reform Commission has recommended that Australia move from "fair dealing" to "fair use" in its own copyright law. Unfortunately, the Commission's report (linked in the article... and it's not a new public!) fails to engage with the foundational reason that the US has fair use and not fair dealing: Our copyright law must harmonize with the First Amendment. Australia doesn't have a First Amendment, so any attempt to bring fair use into play there is going to have some difficulty. At least the Commission has (rightly) refused to distinguish between parody and satire, thereby robbing judges (and Justices) the opportunity to screw up whatever distinction there might be between them.
• Lawyers seemingly have been despised for centuries. Often, deservedly so... but one must then recall that the Shakespearian "First thing we do, let's kill all the lawyers" was spoken by an aspiring tyrant who wanted to ensure there would be no opposition to his proto-police state. Of course, even that ray of light gets rather murky when one considers how many members of Congress are lawyers.
• I suppose that beats being personally attacked because one has the temerity to oppose a particular corporation's scientifically invalid profit maximization. Prior to law school, I observed this sort of thing more than once within the military-industrial complex, and more than once in publishing. That doesn't make it any less repulsive.
• There's a major "analysis" of writers' income out there now; it's so egregiously flawed that I will not link to it here (although it's not going to be too hard to find). It's a well-meaning attempt... but it is inherently flawed because it presumes data validity from an unaudited source and fails to allow for returns. That's before getting into the errors in the data analysis itself, some of which are rather subtle (choice of sample or population statistical tools is just the starting point). The real killer, though, is the underlying assumption of comparability and fungibility... and perhaps nowhere in the arts is that less valid than with the written word.

  All of that said, the underlying problem is the culture of secrecy in the publishing industry, in which nobody trusts any of the numbers provided... for good and sufficient reason. The intent behind the analysis is laudable, but the end result is much less so. We can't even claim that the problem is an apples-to-oranges comparison — it's a trilobytes-to-mushrooms-to-slime-molds comparison across noncomparable phyla, not of closely related fruits. Those usually don't turn out well for anyone.

• People are willing to question H'wood's dubious record on diversity. Perhaps people would do the same for publishing if that same culture of secrecy that ultimately frustrates that analysis of writers' income discussed above allowed outsiders to see the lack of demographic diversity in publishing...
• Last for now: I'll have much, much more to say about the proposed Comcast/Time Warner Cable merger as filings get made. You can probably guess my position: No. Mergers of semiregulated monopolists never go well for anyone except the M&A people involved (with their excessive fees), and this one would join a quasi-utility, quasinatural monopolist with an abysmal record for customer service and discriminatory conduct with one that's even worse.