The Supreme Court of Canada recently ruled in favor of Newton in the Crookes v. Newton, declaring that this specific use of linking to allegedly defamatory material did not constitute publishing. A number of people have suggested this has links to policy discussions in copyright where sites like ISOHunt that allegedly "just link" to content should be equally immune (See article by Jesse Brown as an example).
I think this requires more than a cursory look at both what the Supreme Court said and the policy being proposed to be added within C-11.
In Crooks v. Newton the judges did not suggest that all linking was immune. There are qualifications to that immunity offered using different language from different judges.
Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.:
Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
Per McLachlin C.J. and Fish J.:
The reasons of the majority are agreed with substantially. However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.
Per Deschamps J.:
In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance or probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form.
In other words, context matters. To translate this general policy into a copyright context, if the courts find that links being made are a deliberate act to make infringing material readily available, the entity linking wouldn't be immune.
Copyright bill C-11 will add a new type of secondary infringement relating to the provision of services.
27(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.
I will for the moment allow the legal community to spend years debating the meaning of "designed primarily to enable" (and the odd focus on "digital" yet again).
We will eventually get multiple worded interpretations from the supreme court, but it will come down to something similar to what was decided in the defamation case. Linking to material without endorsing defamatory or inducing infringing activities will not make one liable, but if you are trying to use linking to get around the spirit of the law then you won't be immune.
In the United States they had a case MGM Studios, Inc. v. Grokster, Ltd where their Supreme Court held the following:
"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
While I believe the new "inducement" standard set out by the United States Supreme Court is more clear than what we see in Bill C-11, the general theme is very similar.
I for one won't be very sad when ISOHunt, yet another pillar of the false claim that Canada is a "piracy haven", closes.