Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Downloads Up, CDs Down | Main | HYMN Project »

July 14, 2005

Hyperlinking Considered Infringement Down Under

Email This Entry

Posted by Alan Wexelblat

After a two-year battle, the Cartel have won the right to make Australians put their fingers in their ears and sing "la la la" very loudly. That is, according to ZDnet Australia, a judge has ruled that it's against the law to merely link to sites that host files that might be considered infringing. Oh, and the ISP is also in trouble, as it's also against the law to host a site that has links to a site that hosts... well, you get the idea. Using this "logic" I see no reason why it wouldn't also be illegal to write a story about an ISP that hosts a site that has links to a site that...

I expect ZDNet should be getting a cease-and-desist order any day now, and Copyfight can expect one not long thereafter, because once it's illegal to write about it, how long can irresponsible criminals like myself be allowed to discuss news stories about ISPs that host sites that have links to sites that... oh, never mind.

Am I the only one who thinks this is absurd? By the way, the original target of this ire is mp3s4free, which appears to be either severely slashdotted or actually down at the moment. The court order as reported by ZDNet was for the defendants to pay court costs, not for a site shutdown nor payment of fines/penalties.

Comments (9) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Robert K. Foster on July 14, 2005 4:36 PM writes...

Well, it seems likely that Google will be an infringing party next. I'd sure like to see how that court case goes... (sorry, that's a joke, really)

Permalink to Comment

2. Alexander Wehr on July 14, 2005 7:03 PM writes...

I smell an appeal.

The telecom companies in oz now have intense compulsion to overturn this judge's absurdly biased and closed minded ruling.

Their enlightened self interest will likely provide funding for future court battles on this.

Permalink to Comment

3. Kim Weatherall on July 14, 2005 7:19 PM writes...

I agree, an appeal is possible.

But I have to protest against the characterisation of the decision. I happen to know Tamberlin J of the Federal Court. I do not think he would have done this lightly. Cooper was represented by counsel in the case. Let's at least wait to see the judgment before we jump to conclusions about exactly what the implications are.

Permalink to Comment

4. Random Comment on July 15, 2005 5:51 AM writes...

It always annoys me when someone flies off the handle and abuses a decision before reading it, or indeed, reading the technical appreciation that the judge had.

Cooper was found guilty of two things: copies of mp3s on his home hard drive (duh), and 'authorising' infringement by using the links. The term 'authorising' is exceptionally wide in Australian Copyright law.

Universal v Cooper [2005] FCA 972

http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/972.html

Permalink to Comment

5. Alexander Wehr on July 15, 2005 10:44 AM writes...

in response to Random Comment:

what about technical appreciation for the structure of the internet as well? Unless you know the full url to every web page, every page you get to is through a hyperlink.

If it really is true that aussie law considers hyperlinking to be "authorizing" then it's time for "activist judges" to bring an unrealistic copyright law back into line with reality, lest it become a catch-all license allowing entertainment conglomerates to destroy huge swaths of the internet at will.

Permalink to Comment

6. mike liveright on July 17, 2005 10:56 PM writes...

Stupid but Understandable

It is certainly true that in order for the internet to be a "populist shared common content resource" it is essential that people be able to link without worry of criminal punishment. If links are make too suspect, or difficult then the internet will decay into a limited corporate tool.

On the other hand, localities want to somehow control what is legal, and thus will want to ensure that their laws are not made null and void by the internet.

Our challenge is to try to figure out how localities, nations... can have some control of the content that they are hosting without putting too many restrictions on the internet.

If we don't deal with this problem in a way that honors both sides, then the freedom to link will be legislated and filtered away.

I suspect that my first proposal would be that if a locality wants to limit the linking to a site, or set of sites, then they may go to a judge and show that these sites are illegal according to their laws, and then notify specific offending sites in their geography that these specific links are illegal. -- I don't like it, but otherwise the localities will just cut the internet paths or fine sites when they find "illegal links" without proper notification!

See some links at: http://www.WeMatter.com/ftl.htm

Permalink to Comment

7. Alexander Wehr on July 18, 2005 12:03 AM writes...

"Our challenge is to try to figure out how localities, nations... can have some control of the content that they are hosting without putting too many restrictions on the internet."

One solution could be to scale back copyright law to the point before it was distorted beyond its original intent and find some alternative compensation.

Considering p2p sharing is the only activity on the internet considered "grave" enough to warrant "international cooperation", and the rest of the activities should be protected under freedom of expression provisions, this should be enough.

Now if only national legislators would realize it is not considered a "compromise" to choose a path between centerist advocates and the extremety which is ceaselessly and shrilly demanded by the cartels.

Permalink to Comment

8. Branko Collin on July 19, 2005 12:11 PM writes...

From the verdict: "The hyperlink sends a command to the remote computer on which the file is stored to release the file to the person who has activated the hyperlink on the website. Without this command to release the file, and the communication from the website’s software, the file would not be available to the user who has requested it."

That is really scary, that an active judge in Australia is incapable of separating references from mechanisms. A hyperlink does not send commands. I can understand that the judge wanted to find against Cooper, but that is no reason to render a sloppy verdict. If the law in Australia does not forbid aiding infringement, the judge should either pass new law (assuming that is within his powers) or wait till lawmakers do.

Permalink to Comment

9. Pen on July 25, 2005 2:43 AM writes...

I suspect that my first proposal would be that if a locality wants to limit the linking to a site, or set of sites, then they may go to a judge and show that these sites are illegal according to their laws, and then notify specific offending sites in their geography that these specific links are illegal.

Permalink to Comment


EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
Why Make the Secondary Market?
Lexi Alexander vs the Copyright Cartel
Digital Homicide Studio v Fair Use
The Art of Asking for "The Art of Asking"
Two Copyright-in-Gaming
Molly Crabapple's 14 Rules
Should Copyfight Publish Stories to Benefit Charity?
Eleventh Upholds Case-by-Case Infringement Review Concept