Sanity prevails: Europe says hyperlinks don’t infringe copyright

The EU’s highest court this week ruled that one website can link to another without fearing a copyright lawsuit. The ruling, which came in response to a complaint from Swedish journalists, reflects a growing sophistication in Europe about how the internet works, and was hailed with a sigh of relief by legal scholars.
In the ruling, the Court of Justice of the European Union explained that links — like this one about where to watch the Olympics — don’t deprive authors of their right to make their work available to the public. The reason is that the author has made the work public in the first place, and all a link does is act as a pointer to the work. For practical purposes, this means that someone who makes a site about the Olympics doesn’t have to ask my colleague Janko for permission to include that link to his story.
From the perspective of North America, where links have long been seen as basic architecture of the web, the most remarkable thing about the ruling may be that Europeans are even debating this in the first place. In Europe, however, the ruling will have an immediate effect since, as my colleague Mathew Ingram notes in his “Dinosaur Alert” post, some news outlets are still pushing to make linking illegal.
The debate (if you want to call it that) over linking is different, of course, than the one over how much material a site can reproduce without permission. It’s an open question of where to draw the line between fair use and copyright infringement: in the case of news, American courts have drawn the line at reproducing the lede while Europe, which has stronger protections for authors, is less liberal. But deliberating over permission to link is like debating whether or not to have an internet.
While the court is clear that regular linking is not copyright infringement, it also excludes certain situations:

where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only [my emphasis]

I’m not clear what situations the court is talking about here, but presumably it is envisioning some type of web scraping in which a site reproduces content behind a paywall without permission. But that is not the same as linking, so it’s hard to see where the problem lies. Likewise, websites that offer indexes of links that point to pirate streams are likewise illegal under a separate legal theory, so that is not an issue.
In any case, internet users everywhere can hail the decision as a welcome does of commonsense. For those of you who want more details, the IPKat has a good rundown — and now that I’m sure I don’t need permission, I’ll even offer you the link.