Is it now illegal to link to copyrighted material in Australia? NO

Submitted by Danny Weitzner on Wed, 2006-12-20 12:26. ::

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

There’s been a lot of coverage (Sydney Morning Herald, Copyright ruling puts hyperlinking on notice, 19 December 2006) about a recent copyright case from the Australia Federal Court. This is an important case but to my reading the decision itself, 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 illegal 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 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 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.

* 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.