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Australia Rules Linking to Copyright Material Also Illegal
An anonymous reader writes "A recent ruling in Federal court upheld the ruling that the operator and ISP that hosted the site 'mp3s4free.net' were guilty of copyright infringement violations because they provided access to the copyright material. From the article: 'Dale Clapperton, vice-chairman of the non-profit organization Electronic Frontiers Australia (EFA), explained the ruling as follows: "If you give someone permission to do something that infringes copyright, that in itself is infringement as if you'd done it yourself. Even if you don't do the infringing act yourself, if you more or less condone someone else doing it, that's an infringing act."'"
Thing is, as a layman, this ruling doesn't strike me as radically different to the concepts of vicarious and contributory infringement already common in US courts. If the big US hosting companies, search engines and content aggregators are prepared to cope with vicarious copyright infringement threats (which is what took down the original napster) why not this?
Contributory infringement
CONTRIBUTORY INFRINGEMENT LIABILITY
The standard definition for contributory copyright infringement is when the defendant, "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." [2] In other words, the record labels must not only show ownership of a valid copyright and unlawful copying but must show that the P2P company 1) had knowledge of the infringing activity and 2) materially contributed to the infringing conduct. Again, this is for the purpose of holding someone other than the infringer liable for copyright infringement.
VICARIOUS INFRINGEMENT LIABILITY
Vicarious liability is another means of holding someone liable for copyright infringement even when that person or party is not the one who did the infringing. In order to find a defendant liable under the theory of vicarious liability for the actions of an infringer, it must be shown that the defendant 1) has the right and ability to control the infringer's acts, and 2) receives a direct financial benefit from the infringement.[3] Unlike contributory infringement, knowledge is not an element of vicarious liability. However, courts have determined that the combination of the right and ability to control the infringer's acts and the receipt of a direct financial benefit from the infringement suffices to hold a defendant vicariously liable for copyright infringement, even if the defendant had no knowledge of the particular infringement.[4]
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.
... but down here we spell it aRse.
Did you read the last few lines of tfa?
I'm no copyright lawyer, yet alone an Australian one, but seriously.... the attitude displayed by the prosecuting lawyer & judge is....scary
There are shills on slashdot. Apparently, I'm one of them.
I'll take that bet. My money's on the world.
Historically, it has been common for industries, laws, and other Big Systems to favour the corporations in new endeavours. Twice armed is he who knows his cause is just, but thrice armed is he who gets his blow in first, and all that. Let's face it, corporations with their huge financial and lobbying power tend to be pretty quick off the mark at stealing an advantage over the public. Perhaps more to the point, until they try it, the public don't know what they have to protect themselves against.
But a little further down the line, perhaps 5-10 years for the things I can think of off the top of my head, the public always win. The next big swing I'm expecting is for DRM, when the public start to realise that they've been had. DRM is relatively safe as long as it doesn't annoy the average person and only geeks see what's wrong with it, but it's been getting serious for a few years now. As people's first MP3 players start dying or they upgrade their PCs and they realise they can't take their music collection with them, as people who spent a fortune on early HDTVs get told they can't watch HD discs they paid a premium for at any better resolution than a normal DVD because of something called HDCP, as people whose legitimately purchased software starts deactivating itself in a case of mistaken identity and costing them or their business time and money... Then the people will cease to accept it, DRM will become a political timebomb, and the politicians and lawyers will turn on the tech and media companies who advocate DRM like piranha in a frenzy. It always ends this way, when something good is corrupted by corporate interests; it's only a matter of time.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
>> Australia Rules Linking to Copyright Material Also Illegal
That really had me wondering at first. I have over 30 CD's on my website. All the content on my website is Copyright. So did Australia make my own links, internal and extermal, which point to my own website illegal? What gives them the right? I am the copyright holder, so how can they make linking to copyright material in and of itself illegal?
Then I RTFA and found out that the title, much like AP our Reuters, has nothing to do with the actual story.
NOTHING illegal about making a site called mp3s4free.net.
In the United States, Grokster was decided in large part because of the overall effect of Grokster's marketing of its service. The "inducement to infringe" was proven by Grokster advertising, which compared it to Napster and in effect said, "Hey, Napster is illegal and got shut down, but you can do the same stuff at our wonderful site that you used to be able to do at Napster!" Many legal commentators have noted that if Grokster hadn't so obviously stepped on its crank, the US Supreme Court might have decided the case differently. Instead of begging to be sued, they should have touted the non-infringing uses of the service, such as sharing public domain content.
People jump all over courts for being "stupid" when they don't see the obvious. The mp3s4free name in itself obviously isn't illegal. But it seems that mp3s4free was engaged in rather obvious and stupid inducement to infringe, and the "we're just linking to other sites" argument is a poor smokescreen for the fact that it was a clearinghouse for infringing activity. Your repetition of the word NOTHING doesn't change that.
Filesharing services need to get smart about the law if they want to win these cases. They need to build the services carefully, bringing in partners (such as Archive.org for example) who can provide a wide range of files (think academic uses, archiving of public domain works, sharing of user-created materials). The more a P2P service can show that it is really about distribution of useful content, rather than mere inducement to infringe copyrighted works, the easier it will be to de-stigmatize P2P services in general. In the mean time, the courts and the public at large will look at P2P as a technology used primarily to infringe on copyrighted works.
Read the EFF's Fair Use FAQ
Any MP3 file, once created, is copyrighted by its creator at the moment of its creation, at least of the country the creator resides in is a signatory to the Berne Conventions. This includes Australia.
That means that the statement "copyrighted mp3s" is meaningless. All MP3 files are copyrighted. Some MP3 files may be freely copied, while others may not, but that is unrelated to their copyright status.
Mainframe/UNIX Bit Twiddler and long time Windows/Linux Hobbyist.
The Theorem Theorem: If If, Then Then.
"Don't I automatically own the copyright to anything I write? If that is so, then would having a link to any web-page that you didn't write yourself be an infringement? Are links generated by search engines now illegal in Australia?"
Doubtful. The news.com.com.com article goes a little more in to this. He tried the "google defense" and was rebuffed. While it's clear that many Slashdotters do not see the difference between operating a general-purpose search engine and operating a site with the express purpose of providing links to pirated MP3s, the justices in this case did.
Sitting in my day care, the art is decopainted.
Almost everything on the web is copyrighted?
Even if something is freeware, it's still copyrighted.
Open source like Firefox is copyrighted too.
This just get a big WTF from me.
This random image (warning, illegal link!?) is copyrighted unless the photographer explicitly released his rights and placed it into the public domain, which is a quite rare thing to do. All created material is copyrighted the owner, even if the owner doesn't claim so, right?
Beware: In C++, your friends can see your privates!
Actually this one went through the courts and there were arguments that libraries shouldn't have copy machines. If you notice, they usually post the relevant portion of copyright law next to the copy machine at most libraries.
Avoid Missing Ball for High Score
Some MP3 files have been released into the public domain by their auhors and are no longer copyrighted. And "copyrighted mp3s" is short for "mp3s copyrighted by someone important who has the time and inclination to protect their copyright." Finally, not all countries that are signatory to the Berne convention have the same exact rules. To be safe, use the phrase "Copyright [date] by [author]. All rights reserved." Even though not strictly necessary in most places, it will help you win and recover more damages in court.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
When looking at an MP3, you are dealing with quite a number of copyrights, all of which could be held by the original creators, or by someone else. One service that Music Publishers provide is that they buy up most of the copyrights associated with the music, making it easy to gain permission.
A music MP3 will have the following copyrights:
1. Composer of the original tune
2. Composer of the original lyrics
3. Adapter of the original tune
4. Adapter of the original lyrics
5. Each performer in the piece owns copyright on their own performance
6. The recording studio owns copyright on the recording of the performance (with permission from the performers to copy their performance). This is due to the fact that two people recording the same performance can produce two very different interpretations of that performance.
7. The recording studio (usually) owns copyright on the mixing of the recording.
8. The software developers own the software used in the above creative processes. 9. Someone owns the copyright on the MP3 conversion of the mastered audio. This would be whoever did the conversion. There are also royalties to be paid to various third parties for using the MP3 codec, but this falls outside copyright.
So, there are roughly 9 copyright categories involved in an MP3, all of which can be held by any number of permutations of individuals and corporations. Publishing houses act as a buffer for the consumer, handling the copyright mess that can ensue. They usually do this by obtaining all the above copyrights themseves, in exchange for some payment agreed to with the copyright holder. In some cases, they don't get all the copyrights (for instance, for #2), but negotiate a contract with the leftover copyright holders for publication of the works including those copyrights.
One other copyright associated with popular music is on the artwork associated with the music. You could also argue that the ID3 tags on an MP3 could be copyrighted.
Anyway, I agree with you on your basic point -- it always annoys me when I hear people say "that xxx was copyrighted!" Somehow our society has trained us into thinking that the only copyrights worth anything are held by the corporations.
It gives a somewhat more accurate perspective on the case than the SMH news article referred to above.
Dale Clapperton
EFA Chair (not Vice-Chair!)