Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

  1. I commented yesterday (summary? ‘troubling’. ‘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. Techdirt have commented (‘the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
  3. Boing Boing comments here (‘If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
  4. Black comments here (‘I agree with Kim’)
  5. The Age has the story here.

As you can see, the tenor of this commentary is – ‘shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. On repeated occasions in recent times, judges of the Australian federal court have emphasised that whether a person is authorising infringement is a highly fact-dependent issue. That is, the judges say that it is a case-by-case analysis, and they really mean it. As I said at the time that the first instance judgment was handed down, just because a judge holds in this context that linking is authorisation of infringement, doesn’t mean that linking in another context will be authorisation.

In other words, context is all.

In this Cooper case, you have to remember that Cooper:

  • Set up a website visited by hundreds of thousands of people
  • Set it up with the quite apparent aim of (a) allowing upload of links to MP3s, automatically, and (b) ensuring people could easily search for, and find, mp3 files they wanted
  • Set it up to have lists constituting the Australian, UK, Billboard and other charts

This is what the site looked like:


Light blue box on the left has ‘popular downloads’. The top one is ‘Where is the Love’ (black eyed peas). Light blue box on the right has ‘latest additions’, top one ‘If Youre Free’ (Audioslave). Across the top we have the Charts: The Australian 40, Billboard 50, Dutch 20, European 20, German 20, MuchMusic 20, UK 20 and USA 20. There are search facilities: you can search by artist or title.

Sure, he wasn’t hosting the mp3s, but he really wasn’t Google, whichever way you look at it. It was a site designed to simplify the process of MP3 downloads. The description by Kenny J which I quoted yesterday was perfectly accurate:

So far as internet users and remote website operators were concerned, the website was in substance an invitation to use the hyperlinks provided and to add new links in order that sound recordings could be downloaded from remote websites, and a principal purpose of the website was to enable infringing copies of the downloaded sound recordings to be made.

That is what was held to be infringement by authorising – not just a blog with a single link to something unauthorised. It’s closer to US-style Grokster-style inducement analysis (at least as outlined in the more sophisticated judgment of Kenny J) than a general ban on linking.

So when you see a quote like this:

“We don’t make any distinctions between big websites or small websites”, [the spokesman for Music Industry Piracy Investigations (MIPI)] said, adding that MIPI would consider individual blogs on a “case-by-case basis as to whether it would be appropriate to take action”.

Ms Heindl’s message to Australians is clear: “If you are linking to copyrighted material in an unauthorised fashion, then you can be held liable for copyright infringement.”

You need to take it with a grain of salt. As I said. Context is all.

That said, I stand by my criticisms of yesterday. There are a number of problems with the judgments of the Full Federal Court in this case, but the most important three are (a) a failure to acknowledge the Internet/industry context, as this judge-developed doctrine allows, (b) a failure to take any account of developments elsewhere in the world in this area of the law, and (c) the statement of conclusions in unqualified, careless terms that encourage the MIPI-type attitudes (and nasty cease and desist letters) that can be seen in the quote above. And that, I have a real problem with.