Electronic Frontiers Australia (EFA) today expressed its concern at the decision of the Full Federal Court in the Cooper v Universal Music Pty Ltd appeal. The initial decision in this case held that a Brisbane webmaster, his Internet Service Provider (ISP), a director of the ISP, and a technical support employee of the ISP were liable for ‘authorising’ the infringing activities of users of a website which acted as an index and search engine for MP3 files located elsewhere on the Internet.
The decision of the Full Federal Court on the appeal upheld that decision as against the webmaster, ISP, and director of the ISP.
The appeal decision however reversed the findings of the Federal Court on the liability of the technical support employee. EFA welcomes this aspect of the Full Federal Court’s decision, as it will hopefully signal the end of the music industry’s previously reported tactic of suing low-level employees.
The decision of the Full Federal Court involves a complicated area of copyright law known as ‘authorisation’ of infringement. Under the Copyright Act, if you ‘authorise’ someone to infringe copyright, you have also infringed copyright.
In deciding whether someone has ‘authorised’ infringement, a court will look at whether that person has ‘approved, sanctioned or countenanced’ the infringing act, and also a number of other factors, including whether the person had the power to prevent the infringement, and whether they took reasonable steps to prevent it.
“The decision of the Full Federal Court does not mean that hyperlinking to infringing content will automatically be an authorisation of infringement,” said EFA Chair Dale Clapperton. “Every case would be decided on its own facts, and not every countenancing of infringement will give rise to liability.”
“This decision does not give copyright holders a general licence to sue people for linking to allegedly infringing content, or embedding allegedly infringing youtube clips in blogs. Comments previously made to that effect are inaccurate and overstate the position.”
“The website at issue in this case was found to have thousands of links to allegedly infringing files, and to have been established for the purpose of allowing people to locate those files. It is a far cry from a blog with one or two embedded youtube videos which are alleged to infringe copyright.”
“However, this decision will still create significant uncertainty for Internet publishers, from Google to your average Internet user who posts on a message board. The line between hyperlinking and authorisation is not clear at this point in time. Until it is clarified by future cases, this uncertainty will chill freedom of speech online and hinder the development of new content and new technologies.”
EFA is also concerned that this decision may mean that not taking positive steps to ‘pirate-proof’ products or services could constitute authorisation of any resulting infringement.
“If technology companies are forced to ‘pirate-proof’ their products to avoid liability, this will increase the cost of products to consumers, and impose arbitrary technical constraints on how consumers can use copyright material. It will also deter the development of legitimate future products which might also be used to infringe copyright.”
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Below is:
– Background information
– Contact details for media
Background:
The decision of the Federal Court at first instance:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/972.html
The decision of the Full Federal Court on the appeal:
http://www.austlii.edu.au/au/cases/cth/FCAFC/2006/187.html
ZDnet news article on suing employees::
http://www.zdnet.com.au/news/business/soa/Directors_and_employee_of_ISP_sued_over_music_download_site/0,139023166,120281016,00.htm
About EFA:
Electronic Frontiers Australia Inc. (“EFA”) is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties.
Media Contact:
Mr Dale Clapperton
EFA Chair
Phone: 0416 007 100
Email: dclapperton at efa.org.au