Hyperlinks on trial following Australian decision

by Angus Kidman

Wednesday, 20 December 2006

An Australian legal ruling that links to copyrighted material may themselves represent a copyright violation could spell serious trouble for bloggers and search engines.

In a ruling against now-defunct Web site mp3s4free.net, the Federal Court found that both the site's owner, Stephen Cooper, and its hosting ISP, E-Talk, had violated Australian copyright law by linking to copyrighted music. Cooper's defence -- that the site merely provided links to the material -- was rejected by the court, which was considering an appeal against an earlier adverse verdict.

The ruling is widely regarded as troublesome for bloggers, who frequently link to all kinds of material online, and for search engine companies such as Google, which rely on automatically indexing large amounts of content without assessing its legality.

The inclusion of a disclaimer concerning copyright -- a common tactic used by bloggers to avert potential legal action -- also came in for a serve in the judgement. "Mr Cooper did not suggest, other than by reference to disclaimers on his website, that he took any reasonable steps to avoid the infringements of copyright," it reads. "As those disclaimers misstated Australian copyright law in a material way, the inclusion of them on the website did not constitute a reasonable step to prevent or avoid the infringement of copyright."

While the ruling has excited considerable comment online, especially concerning its impact on search engines, it does draw a distinction between general-purpose sites and more narrowly-focused operations such as mp3s4free.net.

"Google is a general purpose search engine rather than a website designed to facilitate the downloading of music files," it notes, rejecting suggestions that Google's continued operation justified the existence of the music downloading site.
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