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."'"

Comments

The really scary part of this ruling....

[Whiney Mac Fanboy]

While it's sad that someone has been done merely for linking to "illegal" music [1], the real tragedy of this ruling is that the hosting ISP was also dragged into the mess (from TFA):

In yesterday's Cooper judgment, the ISP that hosted the website, E-Talk, was also found to be guilty of authorising copyright infringement.

The court found that E-Talk profited from the copyright infringement of mp3s4free.net's users through advertisements on the website and took no efforts to take the site down.

"E-Talk countenanced the infringing downloading by internet users who visited the website that it hosted," the court held.

Sorry Australians, no more internet for you. As soon as legal departments look at this, expect all your big ISPs, Yahoo, Google, MySpace, etc to all flee Australian shores.

[1] Although frankly, with a site called mp3s4free.net what the hell did he expect?

Re:The really scary part of this ruling....

[Whiney Mac Fanboy]

Kazaa and Napster didn't actually provide the content either.
The idea of extending this to imply that all Australian ISP's are in danger is retarded.

You didn't get what I said at all did you? Napster/etc are the equivilant to mp3s4free.net (the charges against whom, as I said was sad, but understandable).

However, the hosting ISP was also charged. Can you see how charging a hosting provider for hosted content has implications for the wider industry?

Re:The really scary part of this ruling....

[anno1a]

Weeeell, mp3s are not illegal. There are a LOT of music out there, that is free, so mp3s4free could easily be a site linking to those specific mp3s. I just find it rather scary that you can get punished for linking to someone who links to copyrighted material. So if I link to Google and Google links to something illegal, then I can get sued?

Also, from the /. article: "if you more or less condone someone else doing it, that's an infringing act." As I read this, this means that I am infringing if I think it's okay that you infringe. Which also means that if I argue that it should be legal to infringe on copyrighted material, then I am already infringing.

Re:The really scary part of this ruling....

[Skye16]

Which takes it a few steps farther.

For example, I codone these judges should be taken out back and whipped within an inch of their respective lives with a giant whale penis.

I guess that makes me guilty of aggravated assault and attempted murder with a whale wang.

Somehow, I don't feel all that bad about it. *shrug*

Re:The really scary part of this ruling....

[shark72]

"What we don't understand is the point of law that he used to justify his ruling. What we don't understand is how we are protected from this kind of charge when we are not trying to do anything related to music."

I don't understand the first part, either, since I'm not familiar with Australian law. But I can offer some advice on the second.

Due to the nature of their profession, many people who read Slashdot have trouble coming to terms with the fact that the law is often rather soft and mushy. We works with ones and zeros in our own profession, and it makes much more sense to us if something can be declared to be either illegal or not illegal. In many cases it is indeed quite clear, but in civil law, it's often not. And that is precisely the reason why we have courts.

To get to your point -- say you're thinking of starting a web site and you want to protect yourself from civil liability. You can start by asking yourself these questions:

1. "Am I possibly infringing on somebody else's copyright in a way to which they would object?"
2. "Is providing access to copyrighted content in an unauthorized manner a possible use for my site, or the primary use?"
3. "If I were to ask the copyright holder for permission, would they likely give it? Would my web site's business model still be valid if it relied on getting permission?"
4. "If my web site has user-submitted content, am I building in the proper technical controls so that I can remove content if presented with a DMCA takedown request?"

And if you're particularly cynical, you can ask yourself:

1. "If I'm infringing on somebody else's copyright or allowing my users to do the same, do I have plausible deniability if I am accused of this?"

So, a site like, say, legaltorrents would pass the test, as would, say, a book review site which posted excerpts of text for critical purposes and provided links to where the user could purchase the book. Google would pass, as well. But mp3sforfree.com, as it was operated by the fellow in TFA, would not... he failed on all five points.

Bizarre.

[jez9999]

Isn't this like preventing a news reporter from referring to a book, because someone might go out and photocopy it illegally? If this layman's analogy was given, how many common people would think this ruling to be idiocy?

Re:Bizarre.

[Anonymous Coward]

Another analogy could be putting up signs to advertise the services of drug dealers, which would make most people think the ruling was obvious. It's a good thing we don't make decisions based on analogies, right?

Re:Bizarre.

[goober1473]

What exactly is wrong with the signs? If drug dealing is illegal than the signs just help the law enforcers go and get those providing illegal material, the sign itself is not illegal.

By your argument any search engine provides the signs to material that is going to infringe copyright (or other matherial) and so should be illegal.

Re:Bizarre.

[clifyt]

"Another analogy could be putting up signs to advertise the services of drug dealers, which would make most people think the ruling was obvious."

No, it would be more like putting up signs advertising the services of drug dealers, telling folks that you know all the drug dealers in town and that you can arrange an anonymous deal between you and the dealer, of course taking a cut of the action for your troubles, and stating clearly that your system is the safest way to get drugs because you have done some referral screenings, your clients say that this is the uncut shit, and you'll cut off anyone that offers the stuff mixed with ratpoison.

Its not just complicit in the advertising, they are offering a service to profit as a go-between and most likely bragging that you can't get caught breaking the law using their service using some convoluted logic that only an idiot would suspect indemnifies anyone.

Re:Bizarre.

[jthulin]

No, it's more as if the reporter mailed a copy of the book to whomever asked for one (say the prosecution). Didn't you RTFJ and search for "link"?

<quote source="http://www.austlii.edu.au/au/cases/cth/FCA FC/2006/187.html">
When an internet user clicked on a particular hyperlink, the music file in question was transmitted directly to his or her computer from a remote server.
</quote>

<rant>
That sounds like the definition of deep linking, which was declared illegal in Sweden by the Supreme Court in 2000 ("The mp3 case"). The background to this was in particular the WIPO Copyright Treaty and the EUCD, both of which have been bought by greedy mega-corpos through *bribery* of the People's representatives. It *is not* an Australian problem; it's a global one.

If it seems like I am contradicting myself, I can tell you that in most of Europe you pay a levy on each recordable CD and DVD you buy, regardless of what you will use it for. I have to pay ca. EUR 0,45 to the obnoxiously rich media mega-corpos of the 20th century to support their persecution of their customers and the utter junk they release much too often for each DVD-RW I use for testing Linux distros and transporting/archiving freeware tools or my own photos. They are levied as if they were 180-minute video cassettes. And I have no DVD recorder connected to my TV, but just a VCR. Some of you will think: "Germany charges reasonable levies, so why not buy from wesellcd.com?" I do not use very many discs, but I strongly oppose the idea that CD- and DVD-R(W)s are mostly music and video storage media. Too many people believe that the V in DVD means "video", whereas it really means "versatile". No, the corpos must decide if they want media levies and free private copying or no levies and fair-use copying only. Today's absurd media levies encourage P2P file sharing and the downloading of mp3z and moviez.

There are no media levies in Oz, are there?
</rant>

Re:Bizarre.

[Phisbut]

Remember, a link takes you to a location - if a user can follow the link, so can the investigator.

Torrent links have a tendency to point to another location when one location gets taken down... how convenient. Taking down the location solves nothing, the problem is the link.

There is *no* valid reason to hold a torrent link to a music file or software for which you don't own the copyright (or have not the permission from the copyright holder). None, other than encourage people to infringe on the copyright.

Bibliographies to made illegal next?

[grahamm]

How is linking on a web page any different than the references and citations that have been in printed material, and probably hand written before that, almost forever? The only difference is that it automates the procedure of 'going to the appropriate stack, finding the referenced book or article, and opening it at the appropriate page'.

Not just Aussies

[PopeRatzo]

This kind of thing means no more internet for more than just Australians.

There is a concerted effort to turn the internet into cable television. The entertainment/military/industrial complex is working with the big telcos to make sure Slashdot becomes a quaint throwback to the days of open internet. Sure there will still be geeks pining about the days when any old body could put up a web site that could get the same attention as one put up by Sony, and a couple of nobodies could come up with a Google, but face it, that's just not the way of the world.

Don't get fooled by the $12.95 per month DSL. Forces are working overtime to put ISPs as we know them out of business. When they finally put the last nail in the coffin of Net Neutrality, watch how fast things change. Then, get ready for all of the internet to look like myspace, and watch for the articles about how great it is that we're free to choose our own "friends". We're already seeing more and more of magazines like Wired dedicated to the joys of the mercantilisation of what's left of the Web.

Remember, Google became a phenomenon without adverts, and existed for years that way. Could that happen today? Think it will happen when there's no "neutrality" about the Web? Freedom never gets easier to defend.

Re:Not just Aussies

[MSZ]

There is a concerted effort to turn the internet into cable television.

I'm having doubts that it is really a coordinated attack, yet it is clear that corporations want complete control of the internet. This may be not a conspiracy, but rather them having similar plans and simply wanting the net for themselves, where trampling of the users is a prelude before fight between the megacorps. There can be only a few ;-)

This is not the worst part IMHO. Really bad is the fact, that people in general (aka "the masses") do not see this grab for control. The internet as we know it is dying, because no one sees it's getting sick.

Like with political dictatorships, "it has to get worse before it gets better". Until it actually bites them in the ass, people will not care. So, I welcome our new corporate overlords, modem tax overlords, *AA overlords - come here, fuck it up and be quick about it! Maybe then the masses will notice. Maybe. Lets hope so.

Re:Not just Aussies

[db32]

I realize this is slashdot and all, and being anti military is popular, but what the hell does the military have to do with this? I mean seriously what in the hell does the military have to do with the legal system, the copyright nonsense, the MPAA/RIAA, DRM, and so on? Or is this just another cheap shot at the military to get slashdot bonus points. The day the military has the kind of control to really be making these kinds of decisions you will have alot more to worry about than a free and open internet. You can throw around the police state thing all you want (and to an extent, you are right, lots of nations are inching closer and closer) but we are absolutely not a police state.

1. The military brought you the internet, it wasn't the telco and media industry. DARPAnet anyone?
2. The military and intelligence agencies are going to be very interested in a very open internet because its the perfect source for open source intelligence (and that has nothing to do with software).
3. The telco and media industries are going to be very interested in controlling all there is to be seen on the net.
4. In fact large portions of the "industrial complex" part of your little equation are much more interested in having an open/neutral net than a telco/media controlled net.

You have some good points, so please don't 'catapult the propaganda'.

Re:Not just Aussies

[jc42]

1. The military brought you the internet, it wasn't the telco and media industry. DARPAnet anyone?

We need to keep hammering on this history. Both the corporate world and their ideological apologists are trying to convince us that it was "business" that created the Internet. This is, of course, a complete lie; all the original funding came from a US government agency (now called DARPA) that was part of the Army. The business world became interested only after the Internet was a proven success.

There are many reasons to be very suspicious of government and military agencies. But this suspicion shouldn't extend to lying about their actual accomplishments. We should give credit (and blame) where it is due, not to someone who sits on the sidelines and then claims credit for someone else's work.

Actually, I think that the funniest thing about someone bringing the military into a discussion of copyright is that the military generally doesn't get involved in copyright. If they want some information, they just take it and use it. And if you get ahold of some information that they don't want you to use, they don't charge you with copyright violation. "National Security" is a much more effective tool for punishing people who get their hands on military secrets. Copyright is irrelevant to them.

Re:Not just Aussies

[db32]

And a damned good thing too else it would be terribly difficult to buy 4 movies on 1 DVD for $2 at the "Haji shop" right outside the various bases in Upickastan. :)

But seriously...I am so sick of people trashing the military. They need to quit their bitching and accept the blame themselves. The military doesn't exactly make policy decisions. That is done by the politicians, picked by the people. If the military is doing things the don't like, then they need to deal with their politicians, not cry about the military who is just doing what it was told to do.

Beyond that, the unfortunate truth is that while necessity is the mother of all invention, war is the time of greatest necessity. A great deal of the technology that we have today has stemmed from military necessity. Computers, Internet, Radar, tons of vehicle related things, air travel, weather satellites (believe it or not they weren't all spy satellites), all of our space stuff.

What if...

[Umbral Blot]

What if someone posts links on a forum (or other site that allows user comments). Would the site owners be responsbile? This could be a great (awful) way to blackmail people.

Hypothetical situation

[OneSmartFellow]

You are a blogger or other web content publisher. You write an article which cites non-copyrighted content by way of a href URL, say http://www.somedomain.com/link.html, for example. Later the owner of of that web page changes it to contain copyrighted material. You do not notice, and do not remove the citation in your content.

Are you still violating copyright ??

Yet another idiot who simply does not understand the subject matter he is making pronouncement upon.

It sounds like "Thought Police" to me

[msobkow]

If you give someone permission to do something that infringes copyright, that in itself is infringement as if you'd done it yourself.

How can you give someone "permission" to infringe a copyright, patent, or other IP that you don't own? I could see that being considered fraud, like selling the Golden Gate Bridge or the CN Tower, but contributory?

If you have a group of people discussing ways to infringe restrictions or bypass IP laws, you might have opportunities for collusion or some variant on racketeering. But as a society, how can you afford to make it illegal to discuss such important issues and avenues for bringing about social change when the *AA and such get out of hand? There would have to be significant allowance for the freedom of speech in many jurisdictions; certainly I wouldn't expect the legislation around the world to be too consistent given the variety of viewpoints on the issues of IP.

Take the US patent database, for instance. Several attempts to push that database of junk patents on the EU have been rebuffed.

Those who try to create business patents forget a few key points:

1. Any information or ideas published in the public domain cannot be patented. That includes ideas discussed in taxpayer-funded research papers from universities and schools, publicly accessible web forums, newspapers, and any other media that does not make an attempt to protect the information physically. Printed documentation marked "internal use only", "private", "secure", "confidential", or otherwise indicated as not for public access does not lose it's privacy when stolen and published to the internet.
2. Computing is extremely open. The vast majority of fundamental algorithms, hardware and language concepts, data processing approaches, data structures, and even conceptualization of graphical user interfaces, pen tablets, and other such information are shared knowledge of the IT community.
3. If an algorithm, data structure, protocol, or technique is designed as a generic solution, sample, or template, there is no way you can possibly claim that a specific use of that concept is patentable.

The US patent database is stuffed to the brim with such junk. My favourite example is trying to claim a patent over linking a user action to triggering a sale. Whether it is a single mouse click in a GUI, web browser, menu item, popup list selection, or other user interaction is irrelevant. The basic user interaction techniques and algorithms have been discussed, designed, prototyped, and implemented since Alan Kay was at Xerox PARC.

I'm standing with the faithful

[PopeRatzo]

I agree, Anonymous Brave Guy.

My money is also on the desire for free expression, free exchange of ideas and information.

But it's important to remember that the forces of greed have massive resources and, increasingly, the power of government. And because of the technology (see:Money) required to keep the internet running, it's fragile. We'll soon start hearing that a free internet is a haven for terrorists, so it has to be locked down.

If it comes, the end of the Internet as we know it will take the form of "Homeland Security".

As that old Greek dude said: "This and no other is the root from which a tyrant springs: When he first appears, he is a protector." - Plato

Not a police state?

[PopeRatzo]

"..but we are absolutely not a police state." - db32

Buddy, I count 23 video cameras on my 25km bike ride from home to work. That's not counting the still cameras on major intersections looking for speeders and people running the stop lights.
You and I can be held indefinitely without charges. There was just a story about a guy who was picked up, bundled up and shipped off ("renditioned") to Egypt where he was tortured for a couple of years. The only reason we heard about it was because he was THE WRONG GUY.

The government no longer needs a warrant to tap our phones or a reason (habeas corpus) to arrest and hold us. The number of documents that the current Administration has declared "Classified" has gone up by over 5000 percent, and the GAO has estimated that only about 5 percent of those secret documents relate to National Security, allowing the government to operate in near total secrecy (and better, with the appearance of openness, thanks to a complicit media).

What do you think a police state looks like?

Re:Oh ye of little faith :-)

[MSZ]

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.

That's what I mean by "it must get worse before it gets better". Until there is widespread, and I mean really widespread, not just geeks but significant portion of the society in general, movement to get rid of the idiocy, nothing will change. And that may happen only after people realize that they've been had. Not a day sooner.

So the worse it gets, the sooner they will notice something is wrong. To that end I propose 25 to life for downloading Hollywood movies or rap MP3s ;-)