Australian Court Rules Against

The Sydney Morning Herald reported on an Australian Federal Court Ruling against on appeal. The reporting indicated that this could hurt search engines, YouTube, bloggers, and anyone who might link to copyrighted material. However, I think that this may be overreacting to what is in essence a pretty reasonable ruling by the court. Anyone who has read this blog knows that I am not a fan of the RIAA or draconian copyright enforcement. I am a staunch supporter of fair use and balancing the very real interests of the people who collectively grant copyrights via the government and the content creators who are trying to profit from their work. In this case the site was trying to skirt the law by only linking to MP3’s rather than hosting them. However, the intent was clearly to help people download music they had not paid for for use in ways that has little if anything to to do with fair use and an awful lot to do not paying for the music.

Good Intentions

This sort of site is not the same as a search engine which indexes all content it finds with the intent of forming a digital “card catalog” that simply points people to the information they are looking for. The primary function of a search engine is not to assist people in copyright infringement. YouTube also hosts a great deal of copyrighted material, but that is not the goal of the site, merely something that some users are doing on it. Like the VCR that Sony built it has many legal and useful functions that it can serve. The right thing to do is to give the benefit of the doubt to technologies and people and only crack down on cases where the intent is clearly to break the law and steal copyrighted material. It is hard to know if a particular technology will be used for good or ill by a given group or person so banning them based on potential abuse is a bad legal precedent since it will stifle innovation.


One problem with legislating activity on the Internet is that it is globally accessible, subjecting operators of web sites to hundreds or thousands of legal jurisdictions in different states and countries (let;’s not get into cities passing laws here). What is perfectly legal in one country may not be in a another but there is no truly reliable way to know where people are coming from and trying to keep up on changing laws in every country in the world is essentially impossible. This means that the Australian ruling can only reasonably be applied to people or businesses in Australia (and perhaps Australians who are traveling abroad) but not to those in other countries, even if their website has users in Australia. It is unreasonable to expect an American, Bulgarian, or Korean business to operate under Australian law, particularly if the site is build and hosted outside of Australia. I’m not a legal expert, but this seems to be the only reasonable way to operate. This is similar to the problem of free speech where protected speech in America is often banned in other countries such as Germany or China – American sites cannot be expected to follow censorship laws passed in other countries, even if users in those countries visit the site. It is up to individuals in each country to follow the laws that apply to them.

I can live with sites like getting shut down, but it is clear from reading the full ruling that Australian courts have a very different idea of copyright infringement and fair use from those in America and I’m sure in other countries as well. Check out the reference to a University violating copyright law by having a photocopier and book in a library.

In University of New South Wales v Moorhouse (1975) 133 CLR 1 the High Court unanimously held that the University had infringed Mr Moorhouse’s copyright in a book of short stories by authorizing the making of an infringing copy of one of the stories. The relevant circumstances were that a copy of Mr Moorhouse’s book was held on open shelves in the University’s library and the University placed a coin-operated photocopier in that library. Jacobs J, with whom McTiernan ACJ agreed, identified at 21 the real question to be determined as whether there was in the circumstances an invitation to be implied that the person who made the infringing copy might, in common with other users of the library, make such use of the photocopying facilities as he thought fit. His Honour found that such an invitation was to be implied. He concluded that it was immaterial that the library was not open to all comers, that use of the photocopier was not intended to generate a profit to the University and that the University did not know that users of the photocopier were doing acts comprised in authors’ copyrights – and may even have been entitled to assume that users would obey the law of copyright.

I’m reasonably resolved in my belief that a University library containing both books and photocopiers shouldn’t be illegal, even if it is possible for a patron to infringe on a copyright by copying a book it is the individual’s responsibility, not the University’s should that happen. Of course, I don’t know if Australia has the same concept of fair use that we have, but the point is that their laws are different and we can’t be expected to live by them if we don’t live there.

Kevin Hall
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