[20/12/06 update: The decision in this case has recently been upheld by the Full Federal Court of Australia. For information about how this case was treated on appeal, see this commentary by Kim Weatherall]
In no shape or form do I approve or agree with the "anti-linking decision" recently handed down by the Federal Court of Australia in the Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 (14 July 2005). Having read the decision for myself, I do think that there is some hyperbole in some of the criticisms of this case. People were all too happy to take a nuanced reading of the Grokster decision. My argument is that the Cooper case deserves a similar nuanced reading. The respondent Cooper lost one key point, but the applicants – Universal Music Australia and the other members of Australia’s Content Cartel – didn’t get everything which they wanted either.
Most importantly, Tamberlin J rejected the applicant’s contention that merely linking to copyrighted material on the web infringes copyright.
The Federal Court held against Cooper for a different reason, that his website was designed to facilitate and enable its users to infringe copyright. The site, mp3s4free.net, fell afoul of the rule prohibiting authorization of copyright infringement which exists in Australian copyright law. The fact that mp3s4free.net had many deep direct links to infringing copies of sound files on third party sites hurt their case. Who knows that would have happened if mp3s4free.net’s links had been to htm or similar regular web pages, and not directly to the sound files.
The Content Cartel wanted to make it illegal for anybody to provide links to infringing material. That argument failed. Instead the Court has held against the practice of linking to files in such a way that facilitates and encourages other people to infringe. One of the cited High Court authorities states that authorization “connotes a mental element.” (see para. 79 of the decision)
I don’t like this decision, I think it has some disturbing implications and hope it is appealed and overturned by the High Court of Australia. But hysteria and hyperbole aren’t helpful responses to it.
Excerpts from Tamberlin J's opinion:
57 The applicants allege that Cooper has directly infringed the applicants’ copyright in the music sound recordings by communicating these recordings to the public. …
60 It is further submitted by the applicants that the sound recordings have been made available by Cooper through the displaying of hyperlinks on the website …
63 I am not satisfied that the Cooper website has "made available" the music sound recordings within the meaning of that expression. It is the remote websites which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website. …
64 … The evidence given by Mr Beckett was to the effect that the digital music files to which links were provided on the Cooper website were also available to users through the internet generally. That is, internet users can access the music sound recordings via an alternative route by directly accessing the remote websites, either by typing that website’s URL address into the address bar on the user’s internet browser or by using a search engine such as Google or Yahoo, rather than by visiting the Cooper website
77 Section 101(1) of the Act provides that copyright is infringed by a person who, not being the owner of the copyright, authorises the doing in Australia of any act that infringes the copyright. In WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274 (Hanimex), Gummow J made it clear that the direct infringement of copyright and authorisation of copyright infringement are separate and distinct causes of action: see also Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53 at [18] per the Court. …
84 The Cooper website is carefully structured and highly organised and many of its pages contain numerous references to linking and downloading. The website also provides the hyperlinks that enable the user to directly access the files on, and activate the downloading from, the remote websites. The website is clearly designed to, and does, facilitate and enable this infringing downloading. I am of the view that there is a reasonable inference available that Cooper, who sought advice as to the establishment and operation of his website, knowingly permitted or approved the use of his website in this manner and designed and organised it to achieve this result.
