Munich court outlaws weblinks to illegal software

SZ - Verbotene Werbung für illegale Software

If you create a weblink to another website which offers illegal software for download, then you too can be prosecuted for complicity.

This was decided by a Munich court yesterday (Landgericht München I).

heise.de is a widely read German language news site. They recently published an editorial article which discussed the availability of illegally distributed films, DVDs, and computer software. In this article they published a link to a company which was illegally distributing such material. The record industry then took Heise to court with allegations of complicity for copyright infringement.

Heise argued that their articles were protected by laws for the freedom of the press. The judge didn't agree.

Note: TT is currently taking legal advice for issues such as this. Seeing as it's humanly impossible for the editorial team to check every posted link, we're pushing for the responsibility to lie with the individual posting members themselves. Be warned, if you post links to illegal MP3, DVD, and software sites then you may not be immune from prosecution.

An interesting and very valid point.

However, who owns the link in a thread?

Example:

Yesterday I added a posting to http://wittigfahn.de/indexeng.php, the english pages of a recommended tax advisor in Recommended tax advisors and accountants. Today I see my posting has been merged with an earlier posting (without my knowlege) and among other things the link is now http://www.toytowngermany.com/service/?id=wittigfahn, which no longer bears any relation to the original link, in both where it links (first) to, and where it ultimately re-directs to. My posting is not shown as being edited or merged by a higher authority, so any passing reader would have the very real impression that I was responsible for the entire content, which I am clearly not anymore.

If, now or in the future the website *I* referred to becomes a website of dubious content, who is to blame and could be possibly prosecuted for the linking under the new legal considerations?

YL6

So if I'm getting this right you have a link (connection) to a site that's illegal. You don't condon this and you had nothing to do with it - and if you knew/know about the link you will remove/denouce it. However you are still complicit according to the Munich decision?

Well I know a few folks in Munich (maybe some in the judicial system) who have some links (family) to a little genocide ... I'm sure these folks denouce it (I hope!), but since they have this link should they be prosecuted/persecuted for complicity?

I use this absurd example because if they are taking that extreme a stance... well that's nuts and they need the absurity pointed out (would have loved to hear that argument before the court)

i would like to know how this ruling is going to stand if:

1) the content on a linked page changes after the link was made but the link is not deleted, thus according to their ruling "Implying complicity"

2) someone edits a link. Who is the "owner" of a link? This is a serious issue, since in many forums, here included, links are changed, thread titles changed etc without a single notice or warning that the thread/topic/post no longer represents the true wording, meaning or intention of the initial author.

3) the link is NOT made to make people aware of how to act illegally but maybe to point out some other infornation. For e.g. Bittorrent in itself is not illegal. Using Bittorrent per say is not illegal. Using Bittorrent to download copyrighted material IS illegal. Is a link to a site offering a download of a Bittorrent client "illegal"? Bittorrent CAN be used in a legal fashion. even the BBC will start distributing material via this medium free of charge.

4) If this ruling stands it has implicataions for "talking" about illegal activity. ie, you will no longer be allowed to talk about Download sites without fear of being prosecuted by the Staatsanwaltschaft.

I believe this ruling will be successfully challanged in higher courts since there are too many far-reaching implications.

Of course not, how could it be. Even if I were to link directly to a .torrent file for say microsoft office or a movie, that would still be ok as a .torrent file contains nothing illegal. All it really contains is a tracker address and some checksum numbers.
What would be illegal would be a direct link to a file or site with the actual copyrighted material on it, which is pretty rare. You hardly see any illegitimate large file (i.e. media or software) transfers over http its all done with various p2p software. (Or ftp in some cases, which would probably also come under these restrictions.)

I would imagine that in an "open" forum such as this the owners/webmasters simply can't be held responsible for any links or material posted. They have little or no control over it. Even if they monitored every link for every minute of every day (I wonder?), then there is still a 59 second window that an offensive link can be in the public eye.

They may, of course be obliged to give as much assistance as neccessary to the authorities to determine the perpetrator, but that's a different thing and probably would not be conclusive anyway...

YL6

Given any solution that would actually work would require some dracoinian (and probably technically difficult/imposksible) solutions I think the music/software/movie folks better use some more of those "creative" brain cells to alter their business models and educate consumers.