[LINK] Copyright ruling puts hyperlinking on notice

Adam Todd link at todd.inoz.com
Thu Dec 21 13:53:56 AEDT 2006


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 
<http://www.austlii.edu.au/au/cases/cth/FCAFC/2006/187.html>found here.

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