Liability for links site for operator and ISP host upheld in Australia

January 2007


A Federal Judge has said Google could be in breach of Australia’s Copyright Act because of its web links to unauthorised copies of copyright material. The statement that Google’s position was ‘untested’ by Justice Catherine Branson came as a full bench of the Federal Court upheld a finding that Australian website operator Stephen Cooper was liable for “authorising copyright infringement” on his (now defunct) Cooper had argued that his website which provided links to illegal download sites and services was analogous to that run by Google and was therefore lawful. Cooper had noted Google’s victory in a US court case this year against pornography publisher Perfect 10, in which Google’s linking to copyright material was said to be legal “fair use”. In a further legal development, the full bench of the Federal Court also found that the internet service provider that hosted the website was liable for authorising copyright infringement. The internet service provider, E-Talk Communications, did not operate the website, but Justice Branson noted that (a) E-Talk was aware of the copyright problems arising from the website and (b ) E-Talk took no steps to prevent copyright infringements from arising. Justice Branson noted, “Rather than withdrawing hosting of Mr Cooper’s website, or otherwise placing pressure on Mr Cooper to stop his website being used for the predominant purpose of copyright infringements, E-Talk sought to achieve a commercial advantage from advertising on Mr Cooper’s website.” Justices Robert French and Susan Kenny issued judgments in broad agreement with Justice Branson’s. Damages against Cooper and E-Talk are yet to be assessed. and see Music Law Updates August 2005 for the original ruling (Justice Brian Tamberli). In the USA see Field v Google and the ‘Perfect 10’ case both Law Updates March 2006. See also MGM v Grokster (US)and see Blunt v Tilly (liability of ISPs in the UK).

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