Aussie court ruling on 'linking' causing Tizzie
An Australian federal appeals court ruling handed down on Monday, imposing copyright liability on the owners of a defunct Web site called, has the international blogging world in an uproar.

At one level, the ruling (for which, click here) seems to tread familiar ground. Much as the U.S. courts did in their rulings relating to the original, pre-legal Napster and Grokster peer-to-peer file-sharing services, the Australian judges found the Web site owners to be "secondarily" liable for copyright infringement that they were facilitating, even though the site owners themselves neither possessed any protected files nor engaged in any direct copying of them.

Critics of the ruling, however, claim it goes further, alleging that it suggests that mere linking to sites that offer copyrighted files for download can result in copyright liability--a ruling that would theoretically imperil even general-purpose search engines, like Google. The most provocative line in the ruling comes in paragraph 40 of the majority opinion of Justice Catherine Branson, where she dismisses the contention of the Web site operator, Stephen Cooper, that his site does no more than Google does: "Mr. Cooper's assumption that Google's activities in Australia do not result in infringements of the [Australian Copyright] Act is untested." (As they say in chess books, "!?!") In fairness to Justice Branson, she goes on to offer an important second basis for dismissing the Google comparison: "Google is a general purpose search engine rather than a website designed to facilitate the download of music files. The suggested analogy is unhelpful in the context of Mr. Cooper's appeal."

The most comprehensive discussion of the case, with links to international commentary (both learned and profane), seems to be at Weatherall's Law, a blog maintained by Kimberlee Weatherall, a senior lecturer in law at Melbourne University.

Cooper's site provided links to mp3 files of popular songs. If I'm understanding the Court's description correctly, a single click on the link would not only take the music fan to someone else's site or server, which made that song available, but commenced an instant download of it. You can see what the former site looked like by typing into the Internet Archive's Wayback Machine, provided here.

The Australian law governing "secondary" copyright liability is slightly different from U.S. law. While the American courts focus on such concepts as "contributory infringement," "vicarious infringement," and "inducing infringement," the Australian courts examine the notion of "authorization of infringement"--or, if we go whole hog, "authorisation of infringement." For those who want to take a stab at understanding the distinctions between these concepts, here's an article on the subject by law professors Jane Ginsburg of Columbia and Sam Ricketson of the University of Melbourne.

Incidentally, the Cooper ruling has deluged professor Weatherall's site with traffic from people previously unfamiliar with it. Many of the inquiries have prompted the professor to wonder with some chagrin, "Why does everyone assume I'm a bloke?" She's not. You may see her photograph by clicking here.

I'm afraid I really don't see why this ruling is any different at all from the Napster rulings of nearly six years ago. Can any commentator explain it to me?
Posted by Roger Parloff 6:56 AM 0 Comments comment | Add a Comment

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This blog is about legal issues that matter to business people, and it's geared for nonlawyers and lawyers alike. Roger Parloff is Fortune magazine's senior editor (legal affairs). He practiced law for five years in Manhattan before becoming a full-time journalist. To join in the discussion or suggest topics, please email