linking IS authorisation (Cooper decision)

The Australian Copyright debate has once again gone off into the ‘Twilight Zone’ as the High Courts decision in the Cooper v Universal Music Australia throws the legal status of the internet link into a legal limbo;

“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. In view of the absence of Cooper from the witness box, without any reasonable explanation apart from a tactical forensic suggestion that he was not a necessary or appropriate witness to be called in his own case, I am satisfied that the available inference of permission or approval by Cooper can more safely and confidently be drawn. Accordingly, I infer that Cooper has permitted or approved, and thereby authorised, the copyright infringement by internet users who access his website and also by the owners or operators of the remote websites from which the infringing recordings were downloaded.” (Emphasis added.) [1]

Kimberlee Weatherall’s Weatherall’s Law gives a good overview of some of the issues

I think the judgment shows three things:

  • That Australian law is out on its own in terms of potential liability for authorisation of copyright infringement. The law is certainly broader – that is, the scope of activities that will potentially lead to liability is wider – than equivalent concepts in the UK (as illustrated in cases like the Amstrad case) or Canada (as illustrated by cases like CCH). And, as Ricketson and Ginsburg point out, it is broader, even, than US law post-Grokster. Anything that would be caught by post-Grokster inducement liability would also be caught by Australian authorisation liability – and then some.

And further;

Here’s one favourite quote that captures some of the flavour of the Branson judgment:

‘Mr Cooper placed considerable weight on a suggested analogy between his website and Google. Two things may be said in this regard. First, Mr Cooper’s assumption that Google’s activities in Australia do not result in infringements of the Act is untested.’

This quote is striking. Not because it is inaccurate. On its terms, it is obviously perfectly true. No one has sued Google here yet. What is striking is that a statement as potentially momentous as this: that the activity of running a search engine – one of the fundamental activities that makes the ‘Internet work’ these days could well be infringement, we don’t know – can be said without the merest bat of a judicial eyelash.

Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by? [2]

From BoingBoing [4] ‘If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’, and SlashDot says ‘sorry Australia, no more internet for you’

For sure Cooper’s site should have been pinged, but the Judges have used an extremely broad brush when painting their decision. Perhaps the Attorney General can buy the Federal Court a copy of the Idiot’s Guide to the Internet for Christmas?

[1] Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 (18 December 2006) (18-Dec-2006)[Federal Court of Australia]
[2] Cooper – how linking in Australia can land you in hot legal water (18-Dec-2006) [Weatherall’s Law]
[3] Reactions to the Cooper decision (19-Dec-2006) [Weatherall’s Law]
[4] Australia court: link to copyrighted material, feel the wrath (18-Dec-2006) [BoingBoing]
[5] Australia Rules Linking to Copyright Material Also Illegal (19-Dec-2006) [SlashDot]

This entry was posted in copyright. Bookmark the permalink.

3 Responses to linking IS authorisation (Cooper decision)

  1. drjon says:

    Hi. May I have permission to link to this post?


  2. I better give you permission to link to this post so that you are not dragged through the legal system for a breach of the ‘Branson linkage clause’ 😉

  3. (Then again this blog is also Creative Commons
    Some Rights Reserved, not Copyright so rights to use are already granted.)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.