Rafat Ali reports on a troubling court decision trying to restrict direct linking.
In my opinion linking to infringing content is unlawful and that is also what most of the courts say. In the USA there have been several lawsuits about linking, but so far there has been no decision on the liability of a link provider for linking to copyright protected videos or music files (see this pending lawsuit). In Germany there have been lots of lawsuits on this matter and there is no doubt that you are liable if you link to illegal content, at least if you know that the content is illegal. I’m by far no expert in the legal system of the UK, but it is probably not so much different in this area.
So to answer your first question, I wouldn’t say the website is illegal but the links are. The same applies to a blog that occassionally links to infringing content.
In the USA there are Safe Harbour provisions for hyperlink providers. You receive a take down notice and you comply with it, than there is no liability. So far we have nothing that is comparible to that system in Europe. I think we need a similiar system and there are discussions on the European level. I took part in a discussion in September in Brussels. Maybe there will be new rules in 2007, but probably it will take more time.
This presents an untenable situation: If we had to check on the legality — broadly defined — of every link before making it, we would not link and the internet — search engines included — would collapse.