In Australia, the second highest court has ruled a website and the ISP hosting it committed copyright infringement when the website linked to songs hosted on other sites.
Google might be the next target in the legal fight, and hopefully their lawyers are more up to the task than those representing webmaster Stephen Cooper. In Australia, the site Cooper operated similar to a search engine for finding music failed to satisfy the Federal Court that its practices did not infringe music industry copyrights.
Hyperlinks were central to Cooper’s appeal of an earlier decision that found him guilty of infringement. He argued on two grounds – that providing a website and links to content did not constitute authorization to infringe copyright, and neither did those links authorize copying the linked works.
Subsequently the court’s judgment hinged on the interpretation of authorization. Though precedent cited by Cooper stated that ‘a person does not authorize an infringement merely because he or she knows that another person might infringe the copyright and takes no step to prevent the infringement.’
However, the court found Cooper did not do enough to stay within the penumbra of that precedent. The bench likewise did not consider Cooper’s comparison of his site to Google an accurate one:
Mr Cooper placed considerable weight on a suggested analogy between his website and Google. Two things may be said in this regard.
First, Mr Cooper’s assumption that Google’s activities in Australia do not result in infringements of the Act is untested. Perfect 10 Inc v Google Inc 416 F.Supp.2d 828 (C.D.Cal 2006) upon which Mr Cooper placed reliance is a decision under the law of the United States of America which includes the doctrine of fair use’.
Secondly, Google is a general purpose search engine rather than a website designed to facilitate the downloading of music files. The suggested analogy is unhelpful in the context of Mr Cooper’s appeal.
If Google’s linking is untested, it won’t be for long. We think it will be sooner rather than later when the search advertising giant finds someone willing to go after it in what looks like a fair-use hostile Australian court system.
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David Utter is a staff writer for Murdok covering technology and business.
