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July 14, 2005
Hyperlinking Considered Infringement Down Under
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)
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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 Comment2. 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 Comment3. 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 Comment4. 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 Comment5. 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 Comment6. 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 Comment7. 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 Comment8. 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 Comment9. 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.
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