LawFont.com

Australia’s first decision involving the legality of linking was delivered last week. The good news for bloggers is that linking itself is not at risk. Providing links to infringing material is not such a good idea, though, especially when the material is owned by major music studios.

On 14 July, the Australian Federal Court ruled in Universal Music Australia Pty Limited v Cooper [2005] FCA 972 that the operator of a website and the ISP hosting that site were guilty of copyright infringement in music recordings.

Stephen Cooper ran a website, MP3s4free.net, that provided links to (pirated) music recordings. When a user selected a link, the file was automatically downloaded, without further action by the user. MP3s4free.net was constructed in a way that allowed the remote websites to post these links on Cooper’s website without Cooper’s intervention. E-Talk Communications Pty Limited and Com-Cen Pty Limited, which together ran an ISP that hosted the website, allowed Cooper to display the Com-Cen logo on MP3s4free.net in exchange for free hosting services.

Justice Tamberlin ruled that Cooper had authorised copyright infringement by both Internet users who downloaded the infringing music files, and by the owners of the remote websites from which those files were downloaded. Cooper was also found guilty of directly infringing copyright law, as several pirated files were found on his own computer. The entities running the ISP, as well as its principal and one of its employees, were found to have authorised copyright infringement, as they had been in a position to have prevented the infringement taking place via Cooper’s website.

Interestingly, the court did not find Cooper and the other respondents guilty as joint tortfeasors, as there had been no “common design” in their actions. Moreover, the federal and state-based trade practices claims did not succeed. Justice Tamberlin concluded that there was no misrepresentation on the website that downloading the available files was legal, for the website clearly states that MP3s may be either legal or illegal. Moreover, the domain name of the website alone was not a misrepresentation — it merely communicated that the download of music files was free, but did not claim that it was legal to do so.

A notable aspect of this decision was the description of how hypertext linking works. It’s the best judicial explanation that I’ve seen of the process so far.