A warning from Alan Wexelblat in Copyfight. “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.” It’s the “might be” that scares me. Just how closely will Aussies have to monitor their linking partners? Hey, as if the U.S. is that Net-safe these days! The Gordon Gekkos control too many governments.
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Please note – the “might be infringing” comment comes from Alan’s blog post, not the judge’s statements. The judge actually said “I am satisfied there has been infringement of copyright.” No “might be” there at all.
This judgement makes perfect sense to me and is one I support. If you create a website with the sole purpose of prividing links to media files (mp3s in this case) and close your eyes to potential copyright infringements (stating that it is your _belief_ that downloading mp3s for private use is not an infringement of copyright does not cover your backside – some basic research into copyright laws should be undertaken before setting up such a site) then you should cop whatever punishment is meted out when you are brought to task.
People who claim that Google or Yahoo are now at risk obviously have not understood the nature of this case. Google and Yahoo were not set up for the sole purpose of trading mp3 links. They are general-purpose search engines. mp3s4free.net had the sole purpose of sharing links to mp3 files. Not only that, but Stephen Cooper made a ton of money from the site, so he should have made sure all legal angles were covered. He tried a typical hacker-wannabe defense (“I thought it was legal to share copyrighted music!”) and was caught out.
It annoys the crap out of me when the lunatics run out and start proclaiming that “hyperlinking is declared illegal” when this is nothing of the sort.
Thanks for your thoughts, Arb. Even as a civilian, I’d love to see a copy of the actual decision. To me, a big concern is that this could open the door to other things.
All kinds of ramifications could arise in areas such as reporting of events, and risks could even spread to so-called general purpose search engines, which, come to think of it, have specialized components, some dealing with sound files.
These are not academic issues or Aussie-only ones. You bet I went out of my way not to link to the site serving up Harry Potter content without authorization. The site’s purpose was clear. Both legally and morally, I did not feel comfortable linking. Things were clear to me. But what about more ambiguous situations?
David
The offering of MP3s on the internet is not always a form of infringement, just like whatever Google links to is not always infringement. “Some basic research into copyright laws should be undertaken”; indeed! Copyright laws in general do not make a distinction between “mp3s” and “that which Google links to”. Both are copyrightable works. Neither Google and (presumably) mp3s4free perform any research into the legal status of the copyrighted works they link to.
A Dutch judge recently found in a similar case that linking to infringing files is in and of itself not infringing (overturning a previous decision by another judge). As long as the search engine does not establish the legal status of the works it links to, it should be fine.
What this case comes down to (as it has in the numerous cases about the same subject before) is whether you see a hyperlink as a mechanism or as a reference, a pointer. In the latter case, almost no judge will call infringement. But even in the former case, infringement is not an easy call. If a hyperlink is a mechanism (which, by the way, it is not), then isn’t it just like the photocopier in the library?
The problem with the judgement in the Australian case is exactly as people say it is: that it makes linking illegal. And it does so on dubious grounds.
The better example is webjay.org which lets users submit links to playlists they create. Most of the people behind webjay are pro-Creative Commons and pretty diligent about keeping their playlists clean. But there’s always people submitting stuff to infringing mp3s (sometimes it’s next to impossible for even law-abiding people to tell what’s legal).
Under Grokster and decisions like this, these kind of sharing/promotion sites are illegal or questionable, and if they have advertising, then they could be charged with inducement.
I think the main impact of decisions like this and Grokster is to move webhosts to countries with better protections. The other option is to either eliminate user submissions or make users liable for any links they submit.
The question boils down to provenance. Big Media wants to make provenance more difficult to prove, in the hopes that small media will just give up.
mp3s4free.net was not set up with the intention of linking to non-infringing mp3s only. Stephen Cooper tried to cover his backside by claiming ignorance of the law, but ignorance is not a valid defence. It is patently obvious that by having links to the songs in the current Australian top 40 charts (and many other charts) that the idea was to provide links to downloads of popular music.
The practice of putting disclaimers (“to the best of my knowledge this isn’t illegal”, “information provided for educational and research purposes only”, “don’t download files you are not entitled to”, “I don’t host the files, but here’s a link to them”) which is prevalent in the hacking community (for example, BitTorrent sites, 8-bit “ROM” archives, etc) is a very weak attempt at avoiding responsibility. It doesn’t take much to figure out what the true intent is, which is to illegally swap files.
The judgement does not say the hyperlinks are illegal, only hyperlinks to infringing content. Even more specifically, link-farms and/or clearing-houses are the only sites that need to fear this judgement. Along with the Grokster judgement, this is a perfectly valid decision made by the courts and one that should not instil fear in the hearts of anyone running a legitmate web site.
The main impact of this and the Grokster decisions should be to make sites and/or software that are designed with the intention of infringing copyright realise that simplistic, “head in the sand” disclaimers are not going to hold water. If a web site or technology is designed for a legitimate purpose and a small number of users subvert that to infringe on copyrights, then the creators of the site/technology can sleep soundly knowing they are not affected by these judgements.
(In fact, re-reading the judgement, Cooper got off lightly – the judge ruled in his favour on a number of points that were dubious at best…)