Australian Man Found Guilty for Hyperlinking

[BJ_M]

"Major record labels are celebrating in Sydney, Australia today. It took almost two years but they've finally won a legal battle against a Queensland man and his ISP for alleged music piracy. Amazingly, Stephen Cooper didn't even have to host the alleged pirated files. All he did (allegedly) was to hyperlink to a few sites that had infringing sound recordings. His ISP didn't escape either. Even the ISP's parent company got sued. No jail time but all parties will have to pay costs."



But doesnt Google do the same thing ?

[Sillyname]

Yes it is.

Everything is hyperlinked, so everything is an associate to piracy eventually...I guess...

[Gregg]

Unfortunately more absurdities like this are on their way.
As long as the music and movie industry continue to consider the volume of downloaded music and/or video files as equal to CDs and DVDs not sold by them we'll see more s*** like that.

[RottenFoxBreath]

and a dickhead in a suit in some lush office somewhere,is celebrating shit like this as a victory.
how stupid and gullible to they think the public are.how much did this take to orchestrate,and who pays for it,us,the public.

i hope there armpits are infested with the fleas of a thousand camels,for there sheer blatant stupidness.

[adam]

Oops, misread. I thought it was a US label suing them. So this is all under Australian law then. Well, its no different than here in the states.
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I'm guessing the celebration is because this was enforced in another country. Hyperlinking to infringing material has always been actionable in the US and is something that is enjoined all the time.

No its not the same as google. It can't be incidental (you link to page X which has the link to page Y which has the link to the infringing material) and it can't be something like a search engine where the control is in the hands of the user, unless you catered the search engine specifically for the infringing purpose.

It has to be something that the host of the link can be charged with control over. If you have a link to a site you know hosts infringing material you should remove that link because otherwise you can be charged with inducement or contribution.

[lordsmurf]

No its not the same as google.

Can you explain this?
Google DIRECTLY links to all kinds of crap.
So do any number of sites, especially search engines.

It seems to me that because Google "unknowingly" links to something, you're saying it escapes prosecution? What about that "ignorance is no excuse" thing they do?

I don't understand the logic here.

[adam]

Good faith or ignorance is no excuse only for direct infringements, it is a valid defense for contributory copyright infringment or inducement of infringement. This is why you basically never sue under this theory of liability without first notifying the infringer of the problem and demanding they correct it first.

Since simple ignorance is a defense, you can only be sued for hyperlinking to an infringing file if you fail to excersize reasonable care in maintaining your links, or of course if you act willfully.

Google is a search engine. It returns results according to input from the user. This is very different than a website where the author himself placed a single link. You'd expect that person to do a reasonable check of the linked site first, and to monitor it periodically.

Obviously google cannot be expected to monitor the content of every site it links to. An engine that only searched for mp3 files, for example, probably would have the capability to monitor its links and therefore could be sued for contributory infringement or inducement of infringement if they were not dilligent in removing infringing links, especially if they were brought to their attention by the copyright holder. Lots of torrent sites have been shut down for this.

Also "prosecution" is not the right word, that's when you are charged criminally. I can't speak for Australia but I don't think it would be possible for hyperlinking to rise to the level of criminal copyright infringement under any circumstances. But I know what you meant.

[junkmalle]

Some more information:

http://www.theregister.co.uk/2005/07/14/universal_music_australia_v_cooper/

Despite the decision in their favour, the recording industry’s celebrations may be fleeting. On January 1, 2005 the Australian/US Free Trade Agreement (FTA) took effect. Under the FTA so-called “safe harbour” provisions were inserted into the Copyright Act. The effect of these amendments was to provide a defence for internet service providers excluded liability for damages for copyright infringement upon certain conditions".

[adam]

Yeah that's what I figured...
It wasn't a few incidental links, the whole site was dedicated to directing you to mp3s and the sites he linked to sound like they were blatantly infringing.

The only really newsworthy aspect is that they held the isp liable. You cant do that in the US (well as long as they meet certain requirements) and I guess the same is now true in Australia.

[Nilfennasion]

So this is all under Australian law then.

There is no such thing as an Australian record company. Well, there is, but for all practical purposes, there isn't. If you get my drift.

Australia's music industry has literally been destroyed by the RIAA and its shills. The only music that does get out of Australia is pop garabge. Which, considering that it once had bands like Cruciform, Avrigus, or Lord Kaos to offer, is one of the biggest tragedies of its sad 227-year history.

[offline]

"prosecution" is not the right word

In Australia it can be. Our trade practices and business
authority (ACCC) often prosecutes civil cases.

[adam]

You don't "procecute" a civil case whether the Plaintiff is a government entity or not. In legal terms, prosecute generally refers to criminal proceedings.

Your ACCC is basically like our attorney generals. They can file a civil suit or "prosecute" someone criminally. The reason I pointed out the distinction is because we are only dealing with an infringement, not a crime.

[offline]

The phrases "to prosecute civil penalty" and
"to prosecute for civil action" are both well
known and used in legal systems throughout
the world.

[SaSi]

I made a Google search on "+mp3 +bootleg" and it immediately came up with several hundred results.

One of the top findings was a site that had the following message on the front page:
Some sites we link to our down fast, e-mail us if you see broken links or know a site that we haven't listed yet.

There is absolutely no way on earth I could have ended up to the URL that Google led me to. I didn't know it existed and nobody told me it does.

So, arguably, Google helped me find a web site that links to hosts of bootleg music (well organized, by group and genre).

Now, if I wanted to download illegal bootleg MP3 tracks, Google DID give me material assistance to find my way through.

It can be said that Intel and Microsoft did help me also, however they only build PCs to help people do useful stuff.

In this particular instance Google received my input (searching for bootleg) and helped me find exactly what I was looking for.

So, isn't Google responsible for helping me go illegal?

Makes me remember a poor systems manager who in his futile attempts to control network users from browsing x-rated sites, entered a URL filter to inhibit browsing URLs with offending content. One of the words was "anal".

Subsequently, the (company) users could no longer browse web pages related to "Analysis Tools", or "Analytical process" or similar.

[thomseye]

With this logic, gun makers should be responsible for all gun related crimes/murders.

It's still up to the person who visited the site whether or not they actually click on the "offending mp3 link".

The host of the site did not force anyone to click on the link... the end user must be held accountable.

Example... I explain to a friend how to go into a record store and "steal a CD"... My friend then goes into a record store and gets busted for stealing... is it my fault that my friend decided to steal?

Using this logic, we can all be held accountable for things we tell people if they ever acted in an illegal way via something we told them.

We must elect politicians who understand this and vote against politicians that don't. This is a scary trend.

thomseye

[thecoalman]

Example... I explain to a friend how to go into a record store and "steal a CD"... My friend then goes into a record store and gets busted for stealing... is it my fault that my friend decided to steal?

I'm no lawyer here but if you provide information to your friend on how to steal a CD you CAN be held accountable as an accomplice, conspiracy..... whatever it's considered.

[thomseye]

Example... I explain to a friend how to go into a record store and "steal a CD"... My friend then goes into a record store and gets busted for stealing... is it my fault that my friend decided to steal?

I'm no lawyer here but if you provide information to your friend on how to steal a CD you CAN be held accountable as an accomplice, conspiracy..... whatever it's considered.

Wow... so I assume that if you go to a shooting range and get educated on how to shoot a gun, then the instructor can also be an accomplice if you shoot someone?

Can an educational facility be responsible for teaching how to make toxic chemicals if you one day use these chemicals to hurt anyone?

Can a movie company be liable for demonstrating how to commit a crime if a criminal learned how to commit a particular crime by watching a movie?

Geesh, I guess it could be true, but I think that most crimes commited by people can be traced to a source where they learned how to do it... I'd say that there is a huge difference between someone who commits a crime and someone who simply talks about how to do it.

Heck, I'm no criminal, but I remember talking to a friend about how to sneak into a movie theater... I guess if he ever did that, I could be prosecuted then???

There are guides here on this site on how to "rip" a movie from DVD... So is the person who wrote the guide (or this site) responsible if someone "rips" a copyrighted movie and gets busted?

I'm moving to Antarctica to set up my own country! (do they have broadband in Antarctica?)

thomseye

[junkmalle]

I'm moving to Antarctica to set up my own country!

I think that would be illegal.

[thomseye]

I'm moving to Antarctica to set up my own country!

I think that would be illegal.

I learned how to get to Antarctica by clicking on a link from a web site, so if get busted I'll blame it on the ISP and webmaster!

[Just In]

Actually, I believe you must "advocate" criminal activity in order to be an charged as an accomplice.

[End Just In]

thomseye

[thecoalman]

Wow... so I assume that if you go to a shooting range and get educated on how to shoot a gun, then the instructor can also be an accomplice if you shoot someone?

Again I'm no lawyer perhaps Adam can elaborate but teaching someone to shoot a gun so they can improve ther target practice skills or to defend themselves is legal, teaching someone to use a gun with the knowledge that what your teaching them will be used in a crime is not.

It's simialr to the google/site situation. They are not responsible for the links because they have no knowledge of what the link contains except that it matches what the user inputted..... The site with the links on the other hand knows exactly what the content is and is providing them specifically for that purpose.

[thomseye]

Wow... so I assume that if you go to a shooting range and get educated on how to shoot a gun, then the instructor can also be an accomplice if you shoot someone?

Again I'm no lawyer perhaps Adam can elaborate but teaching someone to shoot a gun so they can improve ther target practice skills or to defend themselves is legal, teaching someone to use a gun with the knowledge that what your teaching them will be used in a crime is not.

It's simialr to the google/site situation. They are not responsible for the links because they have no knowledge of what the link contains except that it matches what the user inputted..... The site with the links on the other hand knows exactly what the content is and is providing them specifically for that purpose.

Again...

Actually, I believe you must "advocate" criminal activity in order to be an charged as an accomplice.

thomseye

[thecoalman]

Actually, I believe you must "advocate" criminal activity in order to be an charged as an accomplice.

thomseye

I would imagine teaching someone how to commit a crime would be considered advocating. If you were for example a security guard at a bank and had inside knowledge of how it worked and discussed how to rob the place...even in jest... and your buddies went out and did it you could be held responsible because the knowledge that you provided made it possible.

[thomseye]

Actually, I believe you must "advocate" criminal activity in order to be an charged as an accomplice.

thomseye

I would imagine teaching someone how to commit a crime would be considered advocating. If you were for example a security guard at a bank and had inside knowledge of how it worked and discussed how to rob the place...even in jest... and your buddies went out and did it you could be held responsible because the knowledge that you provided made it possible.

I'm afraid it would get you fired, but not prosecuted. You have no control of what your friend does. You need to help them in some way. It is not a crime to talk about anything really. It's the first amendment. This is why it is legal for people to march in public places even though they may be marching about hatred, such as the Nazi's in Illinois in the late 70's... They preached death to Jews, but there was nothing that could legally prevent them from doing so. There was a killing of a Jewish radio guy and the only prosecution was the man who murdered him. By your definition, the entire organization that preached death to Jews would have been prosecuted. The first amendment is great, but sometimes it allows some pretty horrible people the right to say some crazy sh*t.

If it were the case that simply talking about how to commit a crime would get you busted, then there are many books and movies that would be responsible for crimes... There is a book on how to blow up buildings that was the motivation for the Oklahoma City bombing in the US in 1995. The writer of the book could not be prosecuted because he was not "advocating" bombing buildings.

This is the only example I could come up with, but if you think about it, there are a ton of movies and music even that go into detail about how to commit crimes and the authors can not be prosecuted if someone actually commits crimes based on that info.

So, just because you tell someone that you can steal a CD by putting it in your backpack when no one is looking, it doesn't mean that if someone actually does this then you would be an accomplice. You'd have to actually tell them to do it and/or be with them when they do it.

(this is all based on US laws, obviously... other contries may be different)

...upon further research with a book I have here at school... you'd need to know the person had the "INTENT" to commit a crime to be an accomplice.

thomseye

[adam]

This is going in two separate directions. You all are talking about criminal activity now. The situation the article is dealing with is either inducement of infringement or contributory infringement. Since these are not direct infringements they cannot constitute criminal copyright infringement. They only entitle the copyright holder to civil damages.

Both google and the guy with just a link on his website are held to the same legal standard. Here it is:

(d) Information location tools. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider--
(1) (A) does not have actual knowledge that the material or activity is infringing;
(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

Google is not exempt from this type of liability. The difference is that Google acts on such a massive scale that there is no way for them to police all of their links. But if you could prove they failed this standard above, yes they could be charged with infringement.

Note the requirements of (3). I can tell you that as a matter of practicality, NO person is ever sued under this section without being told of the offending link and asked to remove it. So its not like they can claim they didn't have knowledge of the infringement.

As for being held liable as an accomplice for an actual criminal violation, you really don't want to open up that can of worms. Accomplices are liable through an agency standard. So they are liable if the facts and circumstances are sufficient to qualify them as a principle. This means that the amount of knowledge of the future crime that they need in order to be an accomplice, varies according to their relationship with the individual, their personal status (gun manufacturer versus gun owner), the nature of the crime, and many many other things.

If you look through the list of federal crimes they all have their own standard for what you have to do to be considered an accomplice. And that's just federal law. States can add their own little nuances too. So here is your official legal answer: It depends.