more on From Australia: Copyright ruling puts hyperlinking on notice

Begin forwarded message:

From: Daniel Weitzner <[email protected]>
Date: December 20, 2006 11:04:31 AM EST
To: [email protected]
Cc: [email protected]
Subject: Re: [IP] From Australia: Copyright ruling puts hyperlinking  
on notice

[for IP if you like]

This is an important case but to my reading the decision itself[1],  
it's a mistake to see it as a general rule against linking to  
copyrighted material, as some of the press coverage suggests. Of  
course, it would cripple the Web if it became a copyright violation  
to merely link to copyrighted material. As virtually all Web pages  
are copyrighted by someone, a rule that any link is an invitation to  
engage in copyright violation would mean one could only link to pages  
with permission. That would, indeed, break the Web.

But that is not was this case seems to say. From an admittedly  
cursory reading of the opinion, the Australia court seems to have  
tied it's decision to that fact that:

"...it was the deliberate choice of Mr Cooper to establish and  
maintain his website in a form which did not give him the power  
immediately to prevent, or immediately to restrict, internet users  
from using links on his website to access remote websites for the  
purpose of copying sound recordings in which copyright subsisted." (41)*

and the court went on to accept the trial courts finding that:

"... Mr Cooper [the defendant and operator of mp3s4free.net site]  
benefited financially from sponsorship and advertisements on the  
website; that is, that the relationship between Mr Cooper and the  
users of his website had a commercial aspect. Mr Cooper’s benefits  
from advertising and sponsorship may be assumed to have been related  
to the actual or expected exposure of the website to internet users.  
As a consequence Mr Cooper had a commercial interest in attracting  
users to his website for the purpose of copying digital music  
files." (48)

To boil it down, though Cooper didn't actually have the power to spot  
people from illegally copying the MP34 files to which he provided  
links, his intent was that people engage in copying he knew to be  
illegal and that he actually benefited from that behavior.

The court also addressed the defendants argument that a ruling  
against him could also outlaw search engines in Australia. The court  
said: "Google is a general purpose search engine rather than a  
website designed to facilitate the downloading of music files"

Copyright law has developed elaborate doctrine in order to try to  
determine when to punish those who have some role in enabling  
infringement as opposed to those who are the actual infringers. I'm  
not sure that that balance is always right, but this case, similar to  
the US Supreme Court case MGM v. Grokster[2] is an effort to find a  
way to indicate when linking to copyrighted material goes beyond  
building the Web and violates the law. I'm not always happy about  
where that line is drawn, but it's a lot more subtle than the simple  
technical question whether a link is provided or not.

I'd be curious to hear from those who are more learned in Australian  
law than am I.

Links:
====
* note that the Australia courts have adopted the enlightened  
practice of using paragraph numbers to refer inside an opinion,  
rather than relying on page numbers which neither work well with  
digital copies (such as web pages that lack pagination) and which  
give certain legal publishes undue control over search/retrieval  
services for legal documents.

[1] http://www.austlii.edu.au/au/cases/cth/FCAFC/2006/187.html
[2] http://www.law.cornell.edu/supct/html/04-480.ZS.html

On Dec 20, 2006, at 7:26 AM, David Farber wrote:

>
>
> 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."
>
>
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-- 
Daniel J. Weitzner                          +1.617.253.8036 (MIT)
Principal Research Scientist        +1.202.364.4750 (DC)
MIT CSAIL Decentralized Information Group
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http://www.w3.org/People/Weitzner.html
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