Allowing Linking To MP3s Still Illegal In Australia; Ruling Will Hurt Both Tech And Entertainment Industries

from the following-up dept

Mon, Dec 18th 2006 6:15pm — Mike Masnick

A year and a half back, an Australian court ruled that a website with links to mp3 files was illegal -- even though the site did not host any of the infringing files. Basically, the guy had set up an open links page, allowing anyone to add URLs that link to freely available mp3s, with no determination of whether the track was authorized to be shared or not. While the guy claimed, reasonably, that simply linking to files shouldn't be considered infringement (and that he warned users that the links may not be authorized copies), the court disagreed, suggesting a similar "inducement" standard that the US is now using following the Supreme Court's Grokster decision. In Australia, the case was appealed, but a three-judge panel has once again ruled against the site, arguing that since the "principal purpose" of the site was to guide people to infringing content, it was illegal. They also rule that since the guy set up the site without putting in place protections to block unauthorized songs, it contributes to his guilt.

Both of these points should be very worrying, as they create quite a slippery slope when it comes to new technologies and the potential for the technology to be ruled illegal, rather than the uses of the technology. Traditionally, in the US at least, we've used the "Betamax test" which looked for "substantial non-infringing uses." That meant that even if the "principle purpose" of a technology was infringement, it should still be allowed if there were substantial non-infringing uses. This was what saved the VCR from being declared illegal. However, if the entertainment industry (which only much later learned to embrace the VCR) could have used a "principle purpose" test, the VCR would be dead. So would plenty of other technologies. On top of that, the idea that it's the technology creator's job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It's a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs. It's setting up a path for reduced innovation and great stagnation within the tech industry -- and eventually the entertainment industry as well. As the eventual success of the VCR showed, when the entertainment companies learn to embrace these technologies, there's tremendous opportunity to profit. In fact, the VCR helped revive the movie industry. Unfortunately, the next batch of technologies that could help grow the entertainment industry are likely to never see the light of day (or not see it for very long) if courts keep making rulings like this one.

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19 Comments

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Anonymous Coward, 18 Dec 2006 @ 6:38pm

this is really boring
The guy is an attention whore for creating the site.

People will always be able to download all the copyright infringement they want from news (why I have no idea).

Effect: attention whore is punished. Geeky thieves unaffected.

It's not exactly fair, but it's not exactly a problem.

Worst case scenario, you have to get the tunes via email.
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The Dude, 18 Dec 2006 @ 7:54pm

So, if some band makes their music freely available on their web site and link to my site as the main server, people start going to jail. That's a reachunder from down under.

This is exactly what the RIAA is pushing for here in the states. The only way to make your own music available for others to enjoy, it would be law that you belong to a label under them.
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Noel Le, 18 Dec 2006 @ 8:18pm

reply to Masnick
Mike, exactly what technologies are at risk in this Australian case?
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- Mike (profile), 18 Dec 2006 @ 10:53pm
  
  Re: reply to Masnick
  Mike, exactly what technologies are at risk in this Australian case?
  
  Noel, did you not read the post? I think I explain pretty clearly why setting the standard at "principle purpose" and then claiming that because a technology could be designed differently adds to the liability is a huge problem and would chill or prevent plenty of technologies.
  
  Which part did you not understand?
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Chris, 18 Dec 2006 @ 10:08pm

I don't think he means to say it's an Australlian specific problem. It's a global problem where many courts in many different nations are trying to see what others are doing and whats the "best way" to DEAL with the problem, instead of fix it.

The worlds over-populated, too many people can only have the same ideas so many times. To give the first person who comes across the MEANS to produce something exclusive rights for decades is just stupid. Give them 4 years, more than enough time to get a company off the ground and running with a strong customer support. Then open up variations, what-have-you to the market, and if your company tanks, well then your product was that great, or original as you maybe once thought.
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Noel Le, 19 Dec 2006 @ 1:26am

Reply to Masnick again...
OK, I see your point. However, the site was ruled illegal for linking to unauthorized MP3s, but I highly doubt web sites or hyperlinks are now illegal in Australia. There was no specific technology *chilled* under the *principle purpose* test in this case, rather a specific use of the site’s technology was declared illegal. The way that you explain the VCR analogy however, implies that entire technologies underlying the Australien site would have been banned with the principle purpose test.
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- Grumpy Old Man, 19 Dec 2006 @ 2:48am
  
  Re: Reply to Masnick again...
  But that is exactly the point, at this point yes it is linking to MP3's, but it is still just linking. Now that it is a ruling it will set precedence. And just like the Betamax case, it could have wide reaching implications. Will Google/Yahoo now have to filter out any site that has an imbedded MP3 on it? And for that matter since it is just a link will they soon be required to check all links on a page to insure they do not link to an illegal MP3? With the nature of links, how far down stream do you need to be to be OK? If I have a page set up in Australia that only has links to sites that link to illegal MP3's am I at risk? With that in mind could not you then stretch all links to principle purpose to get to potentially illegal content?
  
  As has been shown again and again (at least here in the states) once precedence is set it has far reaching and log lasting ramifications.
  
  sorry for the rambling, need to go get some coffee in me
  
  GOM
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Crosbie Fitch (profile), 19 Dec 2006 @ 2:50am

Google
And what about giving instructions?

Put "snow white" into Google and click 'I'm feeling lucky' and you will obtain access to an unauthorised MP3 file?
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- Paul, 29 Dec 2006 @ 2:55pm
  
  Re: Google
  I had just finished the first month or so of research into SEO/SEM in Australia when this stuff hit the fan. For me, this was a timely wake up call.
  
  The Australian High Court has sought to define two terms under law: "authorise" and "relationship". Cooper's site established a relationship with users which was based on infringement, they reasoned, and therefore "authorized" the infringements.
  Extending that reasoning, they have held both Cooper and the ISP which hosted the site, Comcen, liable for numerous copyright infringements.
  The Cooper judgment, which will have far reaching effects, was terse in defining these concepts which seem to infer that context was significant. However, the three panel court was no more clear on the new legal concept of 'content' than they were on the other two terms.
  
  Nowhere in the letter of the new law are any of these terms discussed. The law is explicit in the types of punishments though. The Cooper site was a registered business, which would mean the lesser punishments for individuals would not apply. The same may be true for his ISP.
  
  Individuals face on the spot fines of $1320 or $6600 for each instance, and jail terms from 6 months to 5 years.
  Fines for businesses begin at $330,000 per instance, and may include jail terms.
  In addition to the criminal charges and fines, the defendants may face civil actions supported by their convictions.
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The infamous Joe, 19 Dec 2006 @ 4:20am

Gun show.
Links don't infringe on copyrights, people clicking links infringes on copyrights.

This is what happens when old men make decisions on things they don't understand. Out with the old, in with the new.

Has AU made a ruling on Kazaa and the like? I fail to see how they would make it passed this 'principle purpose' test. Hell, all p2p software should be sweating.
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misanthropic humanist, 19 Dec 2006 @ 5:28am

fear, uncertainty and doubt
I am getting tired of the widespread ignorance on this subject.

Digg posted it, with a misleading and inflamatory headline and it received a torrent of ill informed comments.

Slashdot posted it, again with a completely false headline obviously constructed to antagonise their readers into outrage.

I thought Techdirt might do better. But sorry Mike, what you have written on this headline is inaccurate, misleading twaddle.

Whatever the merits and whatever your position on the FACTS - Australia has basicaly said it is illegal to link to mp3s which are under copyright without the permission of the copyright holder.

This is not the same as saying it is illegal to link to MP3s.

This is not the same as saying it is illegal to link to copyrighted material.

There is plenty of material out there which is both copyrighted AND in MP3 files which is available to link to and freely download with the blessing of its owners.

Saying that it's illegal to link to MP3s or that it's illegal to link to copyrighted material is wrong and misleading, and I think you owe your readers a more thorough analysis. Can we raise the bar here please.
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Solarcanine, 19 Dec 2006 @ 5:47am

I hate to be pedantic, but shouldn't it be "principal purpose", rather than "principle purpose"?
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What??, 19 Dec 2006 @ 5:51am

So basically, if I live in Austrailia and I have a website that allows people to put up links (like a forum), *I* am now responsible to verify and confirm that all such links point to material that has been authorized for distribution? Let's think broader than MP3's people - like text, like video, like whatever else you can serve up via weblinks.

Now who is gonna take that liability on? This is like saying the phone company is responsible for me using the phone lines THEY PROVIDE to set up a hit on someone.

*sigh* Just stupid people with stupid ideas trying to justify their stupid existence.
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- Paul, 5 Jan 2007 @ 1:24pm
  
  Re: Don't worry, be happy
  It gets better. From a little analysis, it appears the High Court intends this restrictive ruling to apply to anything on the Net referencing Australia. (I put my blog address in my profile. I'm still running the analysis.) Unline the rest of the world, Australia has only really moved onto the Net in the last 3 years. Small business, representing 96.4% of registered businesses in Australia, has not. The Cooper ruling will make new websites more expensive, increasingly hazardous, and retard those who are not computer literate from widening ecommerce in Australia. The overwhelming number of sites are now banks, government, and media. Government and semi-government (Telstra, the primary telecomm) have moved into many areas of entrepreneurship in force. These organizations could afford high-speed connections and other technology that were denied to ordinary Australians by design. Most Australians are still largely ignorant of the Net, other than for schoolwork.
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Terence Stern, 19 Dec 2006 @ 7:54am

If these guys had been around 400 years ago, we wo
I guess the first device that this test could have been applied to was the printing press. In actual fact content owners learnt to embrace the printing press, and we now have a huge publishing and distribution industry for printed materials.

Imagine if the guys with the illuminated manuscripts had had the powers that copyright holders have now, we'd probably have no internet, no technology, and we'd be pretty much still living in the middle ages. The dissemination of knowledge (alongside erotic etchings and the like) has pretty much driven most of humand development since writing was invented.

These people are lazy, with an entrenched monopoly, new models of information dissemination have always produced new models for making money out of information dissemination.
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tobias robison, 19 Dec 2006 @ 8:14am

Not such a bad ruling ...
The ruling suggests that the website was really designed to point people to mp3 files to download. The site contained a warning against downloading copyrighted files, but otherwise seemd to exist to help people copy them.

This was a site where ANYONE could add links to files. The defendant argued he couldn't police all these links, but the court said he certainly did not have to design the site that way.

Websites that have other purposes can obviously point to mp3 files with impunity.

There is in fact little need for a website to point to ANY mp3 file (in my opinion), unless they are critiquing it or othewise discussing it. I point, indirectly to mp3 files myself, usully by pointing to a public page set up by the file's owner, containing his own link to the file.

If I lived in Oz, I do not see how this ruling would dampen my spirit.
- tobyr21, the precision blogger.
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- The infamous Joe, 19 Dec 2006 @ 9:26am
  
  Re: Not such a bad ruling ...
  Free speech? I have to admit ignorance about AU law, but I'm sure it can't be too terribly far off from US laws.
  
  I can write a book on how to build bombs, or hack into computers, or, If I'm OJ Simpmson-- how to kill my wife... but as long as I don't tell people they should go make bombs, it falls under free speech. So, if I tell people where illegal mp3s are, I am exercising my rights to free speech-- until I tell them to download it (Which, it seems, he warned people about doing)
  
  Then again, if their laws are different, ignore me while I eat my tasty ham and green olive lunch.
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  - Paul, 29 Dec 2006 @ 2:59pm
    
    Re: Re: Not such a bad ruling ...
    Oh, did I mention that Google has said this law would return Australia to the pre-Internet era? And that was in the submissions about the law before it was written. The law isn't supposed to go into effect until 1 Jan 2006. The Cooper judgment and appeal were completed mid-December. It seems the justices decided to make their own law in this case before someone complained about the real one. You gotta wonder what could possibly have made this so important?
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Dell Mark, 16 Nov 2008 @ 7:09am

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