[IP] more on From Australia: Copyright ruling puts hyperlinking on notice
Begin forwarded message:
From: Daniel Weitzner <djweitzner@xxxxxxxxxxxxx>
Date: December 20, 2006 11:04:31 AM EST
To: dave@xxxxxxxxxx
Cc: ip@xxxxxxxxxxxxxx
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 <bdaul@xxxxxxxxxxx>
Date: December 19, 2006 10:35:15 PM EST
To: Dave Farber <dave@xxxxxxxxxx>
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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