From Australia: Copyright ruling puts hyperlinking on notice

Begin forwarded message:

From: Bill Daul <[email protected]>
Date: December 19, 2006 10:35:15 PM EST
To: Dave Farber <[email protected]>
Subject: From Australia: Copyright ruling puts hyperlinking on notice

http://www.smh.com.au/news/web/copyright-ruling-puts-linking-on- 
notice/2006/12/19/1166290520771.html


Copyright ruling puts hyperlinking on notice

Asher Moses
December 19, 2006


A court ruling has given the recording industry the green light to go  
after individuals who link to material from their websites, blogs or  
MySpace pages that is protected by copyright.

A full bench of the Federal Court yesterday upheld an earlier ruling  
that Stephen Cooper, the operator of mp3s4free.net, as well as the  
internet service provider that hosted the website, were guilty of  
authorising copyright infringement because they provided a search  
engine through which a user could illegally download MP3 files.

The website did not directly host any copyright-protected music, but  
the court held that simply providing links to the material  
effectively authorised copyright infringement.

"Mr Cooper had power to prevent the communication of copyright sound  
recordings to the public in Australia via his website," the judges said.

"He had that power because he was responsible for creating and  
maintaining his mp3s4free website."

Ms Sabiene Heindl, general manager of Music Industry Piracy  
Investigations (MIPI), said similar action could be taken against  
individuals who, like mp3s4free, used the internet to link to  
copyright-protected material.

The case against Mr Cooper was brought by 36 parites including  
leading recording companies like Universal Music, Warner Music,  
Festival Records, EMI and BMG.

Ms Heindl said that this could apply even if a person had embedded a  
copyright-infringing YouTube clip in their blog or MySpace page.

"We don't make any distinctions between big websites or small  
websites", she said, adding that MIPI would consider individual blogs  
on a "case-by-case basis as to whether it would be appropriate to  
take action".

Ms Heindl's message to Australians is clear: "If you are linking to  
copyrighted material in an unauthorised fashion, then you can be held  
liable for copyright infringement."

In yesterday's Cooper judgment, the ISP that hosted the website, E- 
Talk, was also found to be guilty of authorising copyright infringement.

The court found that E-Talk profited from the copyright infringement  
of mp3s4free.net's users through advertisements on the website and  
took no efforts to take the site down.

"E-Talk countenanced the infringing downloading by internet users who  
visited the website that it hosted," the court held.

"The fact is that E-Talk could have prevented the infringements that  
actually occurred."

Dale Clapperton, vice-chairman of the non-profit organisation  
Electronic Frontiers Australia (EFA), explained the ruling as  
follows: "If you give someone permission to do something that  
infringes copyright, that in itself is infringement as if you'd done  
it yourself. Even if you don't do the infringing act yourself, if you  
more or less condone someone else doing it, that's an infringing act."

Mr Clapperton added that this ruling could have wider implications  
for general search engines such as Google.

"What Cooper was doing is basically the exact same thing that Google  
does, except Google acts as a search engine for every type of file,  
while this site only acts as a search engine for MP3 files," he said.

But Ms Heindl said MIPI would not be going after Google in the same  
way it sued mp3s4free.net.

"Mp3s4free was different in the sense that it actually catalogued MP3  
files that were infringing copyright material - Google doesn't do  
that," she said.

"There is, however, action that is being taken against Google in  
other jurisdictions, and we're awaiting that eagerly."

The full judgement can be found here. http://www.austlii.edu.au/au/ 
cases/cth/FCAFC/2006/187.html


-- 
Bill Daul

Chief Collaboration Officer
NextNow Collaboratory:  a synergistic web of relationships focused on  
transforming the present

http://www.human-landscaping.com

"Play with boundaries, not within."