Oz ruling on hyperlinks
p2pnet.net news view:- The news this week that the decision in the Cooper case has been upheld on appeal is neither surprising nor good. See: p2pnet.net Audible Magic Oz saga, Cooper v Universal Music Australia Pty Ltd and Australian court rules against MP3 link site.
Cooper operated a site called MP3s4free.net which enabled other users to upload hyperlinks to songs hosted elsewhere on the web, and as you can imagine, some of these were under the copyright control of the major labels.
Cooper`s site itself never hosted the files and nor did he have immediate control over the links that were posted. You can imagine at its peak (191,296,511 hits with 7,081,899 unique visitors and 1.97 terabytes of data downloaded between November 2002 and October 2003) that it would have been impossible for him to visit every link, refer to the database of copyrighted works in each country (which we all know doesn’t exist) to determine the tracks copyright status and then seek permission to include the link on his site.
But once again, the Australian Federal Court (this time the Full Court) has determined that this type of website amounts to ‘authorisation’ under Australian copyright law.
‘Authorisation’ is Australia`s version of secondary copyright liability – that is – despite the fact that he did not himself infringe copyright, he has been held liable by in effect authorising others, by the design of his website, to infringe copyright. The copyrights in sound recordings that were held to have been breached were the exclusive rights to make copies and to communicate works to the public.
Just as with the Kazaa decision, the authorisation test is proving extremely dangerous in terms of constraining and controlling the future of innovation. In this case the court has again stated that technology must be redesigned to prevent copyright infringement.
As many would be aware, in the United States, the courts have held that where there is no supervision or control, there’s no legal basis on which to direct a technology provider to redesign a product.
Even with the Grokster (Metro-Goldwyn-Mayer Studios Inc., et al v Grokster Ltd et al 545 US 480 (2005)) decision the onus to redesign – in that case by including content filters – was only one part of a three part test, the other parts being a business model that depended on infringement and an aim to satisfy a known source of demand for copyright infringement. A failure to include filters on its own would not be enough to establish liability.
In Australia, section 101(1A) of the Copyright Act provides that some of the factors that can be taken into account in determining the issue of authorisation include the extent of the persons power to prevent the infringement, whether any reasonable steps were taken to avoid authorising the infringement, the relationship between the authoriser and the infringer, and whether there was any compliance with an industry code of practice.
Here, Cooper didn’t openly encourage anyone to infringe copyright, and he had a disclaimer on his site stating that he wouldn’t be liable for the infringement of others.
But the court held the disclaimer hadn’t been worded effectively to displace liability. Furthermore, it held that even if it had been worded correctly, it would still have been considered merely cosmetic and not a reasonable step to avoid the infringement.
Cooper attempted to liken his site to the search facilities provided by Google. However, the court decided the analogy was ‘unhelpful’ given that Google wasn’t specifically concerned with music. Ultimately, the court said he’d deliberately designed the site to ensure he was unable to control the links that were posted so, therefore, he’d authorised the posting of the links (their logic not mine)
Cooper also asserted he had no relationship with the people o’dw posted the links, indicating he had no knowledge of who’d made the contributions, or when they were made.
The court held, however, that he did have a relationship with the downloaders via the links on his site, which was user friendly and provided a number of catalogues which went toward illustrating this relationship (??!!??). The relationship was also evidenced by the fact Cooper profited financially through advertising and sponsorships, which depended on the amount of traffic to the site.
This part of the finding isn’t controversial.
What is controversial, though, is the notion that an uncontrolled site or, as would be the case in future applications of the precedent, another piece of uncontrolled technology, can by its very existence amount to secondary liability.
This raises the question in future cases as to whether mere distribution, without any encouragement, could also procure the same outcome. The potential argument is that the very act of distribution is sufficient to base a claim of authorisation leading copyright directly into the field of suppressing new technologies.
Typically (is there such a thing in copyright law?) ISPs in Australia is exempt from secondary liability where they merely provide the means for communication (s.112E.) But here, the site host was also held to have authorised the infringing conduct, which brings serious doubts as to the liability of ISPs in this country.
Gaining a commercial reward for hosting the website via advertising revenue, the host was also held to have failed to have taken reasonable steps to avoid the infringement – which in this case would have been to withdraw the hosting facilities altogether. When one thinks about the position of ISPs in this light – isn`t there always a commercial advantage to hosting a website?
Does providing things like instructions or advice take an ISP beyond the position of a mere communications facilitator? This case raises more questions than it answers.
Compounding these concerns is Branson J’s interpretation of the s.101 authorisation provisions and his finding that the section covers authorisations that are done from outside Australia but where the infringement takes place within this country. This in effect could allow for the record labels or other corporate monopolies to use Australian law against out of state entities such as Limewire which, whilst residing outside of this country, could be seen to ‘authorise’ infringement that occurs within it.
Australia has no Sony precedent – that’s to say there’s no established defence of non infringing uses (notably we have the much narrower fair dealing, not fair use), which leads to some of the strictest secondary copyright liability provisions around.
Let’s never forget our crowning moment where the provision of a coin operated photocopier by a University was a basis for secondary copyright liability.
So now start to think about the position of an mp3 player that allows non-DRMd tracks to be played. It’s deliberately designed in a way that doesn’t enhance control. There`s a financial incentive so therefore there’s a relationship with the infringers. Or consider YouTube or the Pirate Bay Australia has no ‘notice and take down procedures’ and we now have a Federal Court judge saying our law can apply to overseas entities that allow Australians to infringe copyright (which may parallel the BPIs claim against AllofMP3)
Do you see where this could go?
This case is another step in the wrong direction by the Australian Courts and one that could have wide reaching implications for the Internet and technology as a whole into the future.
It illustrates just how draconian our secondary copyright laws are and quite frankly, it makes American copyright law look good.
Sally Hawkins – p2pnet, Australia
[Hawkins is a former musician and songwriter who decided to study law after doing a course in Music Business Management in 1991; she's worked for various departments in both federal and state Australian governments, holds a Bachelors Degree in Legal and Justice Studies (Criminal Law), a Bachelor of Laws (Honours) and is currently a postgraduate student with Southern Cross University writing a thesis on Copyright Law/P2P File Sharing.]
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Also See:
MP3s4free.net – mp3s4free causes p2p concerns, July 17, 2005
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December 20th, 2006 at 5:18 pm
“But the court held the disclaimer hadn’t been worded effectively to displace liability. Furthermore, it held that even if it had been worded correctly, it would still have been considered merely cosmetic and not a reasonable step to avoid the infringement. ”
excellent so does this mean all posted disclaimers, like those in EULA’s are merly cosmetic, cuase that’s the way I’ve always considered the one sided ‘contract’ to be.