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Tuesday, 19 December 2006

7 Responses to “Reactions to the Cooper judgment”

1. Paul Donley Says:
   December 27th, 2006 at 11:39 am

   I’m amazed that with all the debate and the volume of verbiage about the new copyright laws, the most important aspects are so quickly overlooked.
   First, we have to recognize that all content on the Internet – every webpage – contains an implicit copyright, even if there is no copyright notice.
   Second, Cooper was not linking to music or lyrics which would be recognizable as copyright protected. He was linking to where this material could be found.
   Cooper was linking to the sites where the infringements were intended, and that was seen as an infringement in itself.

   If Google, or any webpage on any website, links to copyrighted material – any other webpage literally – in the eyes of the Cooper ruling, that is an infringement of copyright. This is the issue that has Google concerned.
   In order to make this link, the High Court requires explicit permission.

   And further, if that copyright-protected webpage (not website) has links to copyright protected material, then Google or any other webpage on any site no matter what the size, is infringing on copyright based on the Cooper ruling.
   Every blog, webpage, MySpace, or YouTube entry may link to a webpage that links anywhere that contains a link to copyright-protected material is infringing exactly as the Cooper website did.

   Google (and all search engines) index webpages by following links from one site to another. The software is called a ‘spider.’
   The sites that are found are analyzed based on their content, – indexed by “relevancy” – and added to the Google index. This is the source of the greater portion of the supplemental results of a keyword search.
   If Google (and all search engines) must first obtain explicit permission from every site the spider finds leaves only a few choices. One, leave the webpage out of the index for Australians using geo-positioning; or 2) spend the time and money to obtain permission to index the site.
   If the second option is chosen, then Google (and all other search engines) must examine the site to ensure that there are no copyright infringements, or links to copyrighted material – an immense additional cost.
   Further, the owners of the webpage can change the content. As anyone who has worked to gain ranking via ‘natural’ search results will tell you, Google does not index every page on the Net instantaneously every day.

   Google may be held responsible for constantly checking to ensure that none of the indexed webpages contain copyright-protected content, or links to copyright-protected content – which may initially appear irrational and unreasonable, but we are talking about the deepest pockets on the Internet and an opportunity to cash them out here.

   So many of the commentators have asked questions concerning “public exposure”. If Google and the other search engines deem the Cooper ruling to expose them to too great a risk for the reward, there may be no real public exposure to speak of. Remember, Australia is a largely undeveloped marketplace. There are no guaranteed rewards here. At this point, the Australian market will require a few more years of development to become profitable.

   This is evidenced by the fact that both Google and Yahoo! only opened Australian ventures last year. Until then, Australia was part of the greater ‘Oceania’ market as it is for most of the search engines in the US, UK, and Europe.

   The Cooper ruling and the restrictive nature of the new copyright laws will only make Australia an increasingly unattractive market.

   Paul

2. Paul Donley Says:
   December 28th, 2006 at 5:46 am

   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.

   “Context is all” is as spurious and ambiguous a statement as the Cooper case. I’m sorry, Kim, but that’s just the truth. If you’re trying to say here that business and the public should trust the wisdom of the learned members of the court, and judicial discretion, you should just say it outright.
   Fact is, you probably wouldn’t dare. Judicial discretion has a well-earned reputation in Australia for poor judgment, ignoring basic principles of law, and activism that has changed the spirit and word of law. The Cooper judgment is just another example.

   The new law had not even been fully enacted when this judgment was made. The High Court has pre-empted the Legislature and put into place a standard that may not be in the word or spirit of the law. As is usually true in such cases, the court seems to be unduly influenced by a political or financial consideration outside the public interest.
   What amazes me is that these issues are self evident. I am certain that no thinking person does not see them.
   Yet these issues are not being discussed in the flood of verbiage on in Parliament, or any other website.

3. kim Says:
   January 10th, 2007 at 4:11 pm

   Thanks for the comments Paul – and sorry for the delayed response. I’ve been on a bit of a break recently.

   A couple of quick responses. We’re actually in agreement that the Cooper judgment, and other recent changes to Australian copyright law, through the Copyright Amendment Act 2006, make the Australian market less attractive for any company what is dealing with any technology which has to handle, direct to, read or otherwise ‘touch’ copyright works.

   Where we differ is on *why* it’s less attractive.

   The thing is, I disagree with your legal analysis. Google, or, say, me as a blogger, are not ‘doing exactly the same thing Cooper did’ when we link to a page. If Cooper had been held liable for *directly* infringing copyright, this would be right. In that case, the ‘context’, and the intention of the linker would be irrelevant: it would simply be an infringement. Then we would all be liable (and I might not blog!).

   But Cooper was held liable for authorising infringement. When the court assesses authorisation of infringement, it has to assess whether the linker/alleged authoriser has ‘countenanced, sanctioned, or approved’ infringement by others. In doing that assessment, it looks at a series of factors set out in caselaw and legislation: the relationship between the authoriser and infringer, the power of the alleged authoriser to prevent infringement, etc etc. In other words, context becomes important. The ‘context’ of Google or the blogger, and the ‘context’ of Cooper really are very different. And that means the legal outcome will be different.

   So when I say ‘context is all’, I’m not saying ‘don’t worry, our activist judges will find that Google and bloggers are ok’. As you say, that wouldn’t be a sensible thing for me to say.

   I’m saying that the legislation *requires* context to be taken into account, and makes the acts of Google and the blogger look quite different to that of Cooper.

   Does that mean things are all hunky-dory? No. That’s not the effect either of this post or the previous one. As I said, I consider Branson’s judgment sloppy, and both judgments troubling for their lack of sufficient awareness of context.

   It does, however, mean that you have to take copyright owner claims of general threats against anyone with a website with a grain of salt. Cooper is not authority for the proposition that Google is liable for copyright infringement.

   Why is the Australian market less attractive? Not because the law actually renders google and yahoo liable. Because, for all the regular trumpeting of the ‘certainty’ provided by our specific copyright act, in fact, the law is very murky and it is very hard to predict when you will be liable. And that can be just as chilling as bad law.

4. Paul Donley Says:
   January 11th, 2007 at 11:26 pm

   We may be more in agreement on the issues, if not the terms.
   In fact, I would say that the murky aspects are what may close Australia out of the Internet. This is precisely what I refer to when I condemn judicial discretion in my comments.
   It is this dim murky lack of definition that may cause Yahoo! and Google (and other invaluable resources on the Net) to withdraw their services from Australia; or make them pay-as-you-go (pun intended) to defray the costs of obtaining permissions and disclaimers from all linked material – which would make the Internet no longer a free source of information.
   It is not hard to see that such a fee-based search mechanism would permanently harm the use of the Internet in Australia.

   What is interesting is looking a step further: What will happen if major search engines charge for services in Australia?
   With these international services setting a benchmark fee, other directories and search engines would raise their fees accordingly. Telsta has already made many moves to dominate the directory and search engine market in Australia. sensis, Yellow and White Pages are only the beginning. Telstra owns a number of search-oriented sites already; all of them fee-based. These fees will rise because Telstra, as a heavily government-subsidized business, will dominate.

   Search engines and directories are already heavily subsidized at all levels of government. Community Guides are regional or township level, fee-based enterprises.
   Many TAFEs, Institutes, and Universities have used government grants to establish search engines and topical directories, ostensibly for training, but clearly intended to be commercial enterprises.
   Larger corporate interests have funded search engines and topical directories

   We may be seeing the end of free listings anywhere in Australia soon, which will cut a significant portion of potential ecommerce out.
   Is this just conjecture?
   It wouldn’t be hard to map and estimate the risk-reward analysis, using either SWOT or just a simple Venn diagram for illustration. I’d say that sort of analysis would indicate the chances of free listings ending would be stronger than the chance of judicial discretion being used properly – and that supports the thinking we share on the murky future.

   The perfect syllogism looks like concentric circles in a Venn diagram, with the scope of the conclusion in the outer circle. Each argument is wholly contained in the previous, until all are encompassed in the conclusion which is undeniable.
   Most syllogisms map something like the classic example of a Venn diagram, with three circles overlapping on one vaguely triangular area.
   The syllogism that links will be an unconscionable risk is a perfect syllogism.
   The question is: Where and How will it affect the future? (assuming the decision is not reversed and the law re-written)

   Let me get out of my overly analytical mode for a minute (-before I start mumbling something about SWOT and multivariate stuffs), and give you a common example.
   On many Yahoo and google groups, the writers copy and paste whole articles from newspaper and magazine sites, ezines and blogs. I’m not talking about some amorphous estimation of 10% as defined in the ‘Fair Deal’; I mean they just copy and paste whole articles to allow the members to read them, then comment.
   It’s an outright copyright infringement under any system or definition, except on the Net where such an infringement is avoided barely by adding a link to the original.
   If someone were to refer to this post on a blog, or email, or their own group postings, then they are guilty of copyright infringement based on the Cooper ruling.
   We are not talking about singular instances. This sort of thing is common. Many blogs do the same thing. (Yes, it is poor blogging and no original content, but ..)

   In defense, it is probably better understood as reading a news article in a conference call. Based on Cooper, not only are the owners and moderators of the group guilty of copyright infringement, but also the person who linked to the post. In addition, the ISP where the list is hosted; and the owner of the service too.

   The police and courts are free to charge and fine freely at any time if we must rely on judicial discretion and context.
   The disjunction of reality with this sort of thinking, which I think would have offended Gutenburg, is best illustrated by three free standing circles.

   Somewhere in this thinking must arise the concept of free speech to balance the disjunction caused by “judicial discretion”, context and reality. Does the concept of the interests of the people (common weal?) have a place here?
   This is not just about commercial interest, and no copyright law can be reasonable and effective which only considers commercial interest. That, at least, has been established in the US and UK historically for any law.
   Are we to take it as Australia simply showing its inept immaturity again? – the “youthful enthusiasm” that serves in judicial discretion as an excuse for murder and rape at times, now on the level of the High Court?
   Or is that too ludicrous an example, even if it is in evidence?

   I know you’re probably tired of all this stuff, Kim. And I do appreciate your answering my posts. Three years of this sort of exchange must be exhausting, especially in light of the results.
   I will admit that I saw the exhaustion in your words before you admitted to it. It has to be a very real exhaustion that shows in someone’s writing.
   I’m glad to see you took a break.

   Paul

5. Paul Donley Says:
   January 12th, 2007 at 4:02 am

   Geez! I gotta remember not to write things when I have a cold. Strange thoughts form in diseased minds, I see.

6. Paul Donley Says:
   January 13th, 2007 at 8:52 am

   Hi Kim,

   As a result of your comments, I spent some time over on the ACC and Weatherall’s Law trying to see where the law requires context to be considered.
   There are definitions of context, yes, but this law has become part of the criminal code. For a civil judgment, I agree, the context would be required to be considered.
   However, circumstances are clearly defined in the criminal code. And even if the civil side were not pursued, or even any wish to protect copyright is there, the criminal code supposedly has to be enforced by the courts and police.
   That is, after all, the whole purpose of a law, isn’t it?

   Paul

7. Paul Donley Says:
   February 2nd, 2007 at 6:16 am

   Well, I’ve given the ideas some time to percolate both in my own mind and in the commentaries, and my conclusions have not improved.
   The ongoing silence from the press and constabulary is simply disturbing.
   And the idea of leaving such a broad area open to “judicial discretion” under Australia’s notoriously unpredictable judiciary … that’s even more frightening.
   Hmmm “notoriously unpredictable” … Why do I feel like I want to say simply corrupt, either through gross incompetence or negligence, intention and prejudice?

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