David Canton – for the London Free Press – January 31, 2007

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A recent Australian decision added to what is included in downloading and uploading of copyrighted material. The Australian Federal Court ruled the inclusion of links to copyrighted material is illegal.

Mp3s4free.net was a website that provided a search engine where a user could download MP3 files. The website, which did not host any copyrighted music, was an open-links page that allowed anyone to add links to available MP3s, without checking if the music was approved for sharing.

The site’s operator argued linking should not be a copyright infringement, especially since he warned users the links may not be authorized copies.

The court disagreed. saying the site “induced” people to violate copyright and was illegal since its “principal purpose” was to direct people to infringing content.

Contributing to Cooper’s guilt was the fact there were no protections on the site to prevent unauthorized songs from being linked.

The court said Cooper had the “power to prevent the communication of copyright sound recordings to the public in Australia via his website . . . because he was responsible for creating and maintaining his mp3s4free website.”

The Australian court followed the Grokster decision of the U.S. Supreme Court. Grokster was a software firm that produced a peer-to-peer file-sharing program. In the Grokster case, the court ruled the movie and music industries can sue technology firms that encourage customers to steal movies and music over the Internet.

These decisions have caused many to worry they create a mindset in which new technologies themselves will be ruled illegal, rather than their improper use.

Traditionally, the U.S. followed the Betamax Test, which held that “even if the principal purpose of a technology was infringement, it should be allowed if there were substantial non-infringing uses.”

The Betamax Test rescued the VCR from being illegal. Had the “principal purpose” test been used, the VCR never would have seen the light of day.

The decision, that it is the technology maker’s job to build in infringement protection, raises many problems. That burden on technology makers would cut innovation and boost development costs.

The entertainment industry forgets how helpful and profitable new technology can be. The VCR, for example, made huge profits for movie makers.

While the Australian decision has a serious impact on technology makers, it also creates consequences for the public. Similar action could be taken against individuals who use the Internet to link to copyright protected material.

Everyone should use caution when linking to available music and video files