Thursday, December 21, 2006

Linking to copyright infringement

There has a fair bit of excitable commentary around the bazaars about a rather obscure Australian court case, Cooper v Universal Music Australia. Mr Cooper had a website which, though it did not host infringing MP3 files, did provide easy access to such files - he provided links to the files and facilitated automated upload of these links. The court held him liable for authorising infringment of copyright. The most useful and comprehensive commentary on the case comes from Kim Weatherall. Though she finds the decision troubling, she also cautions us to take a deep breath:

"It's important to appreciate the limitations of this decision. On repeated occasions in recent times, judges of the Australian federal court have emphasised that whether a person is authorising infringement is a highly fact-dependent issue. That is, the judges say that it is a case-by-case analysis, and they really mean it. As I said at the time that the first instance judgment was handed down, just because a judge holds in this context that linking is authorisation of infringement, doesn't mean that linking in another context will be authorisation.

In other words, context is all.

In this Cooper case, you have to remember that Cooper:
  • Set up a website visited by hundreds of thousands of people
  • Set it up with the quite apparent aim of (a) allowing upload of links to MP3s, automatically, and (b) ensuring people could easily search for, and find, mp3 files they wanted
  • Set it up to have lists constituting the Australian, UK, Billboard and other charts
he wasn't hosting the mp3s, but he really wasn't Google, whichever way you look at it. It was a site designed to simplify the process of MP3 downloads. The description by Kenny J which I quoted yesterday was perfectly accurate:
So far as internet users and remote website operators were concerned, the website was in substance an invitation to use the hyperlinks provided and to add new links in order that sound recordings could be downloaded from remote websites, and a principal purpose of the website was to enable infringing copies of the downloaded sound recordings to be made.
That is what was held to be infringement by authorising - not just a blog with a single link to something unauthorised. It's closer to US-style Grokster-style inducement analysis (at least as outlined in the more sophisticated judgment of Kenny J) than a general ban on linking.

So when you see a quote like this:

"We don't make any distinctions between big websites or small websites", [the spokesman for Music Industry Piracy Investigations (MIPI)] 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."

You need to take it with a grain of salt. As I said. Context is all.

That said, I stand by my criticisms of yesterday. "

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