The issue before a three-judge panel at the Federal Court of Australia was whether Stephen Cooper, a retired policeman who ran the now-defunct site MP3s4free.net, was legally allowed to post links to mostly copyright MP3 files hosted on other servers. Cooper does not appear to have hosted any copyright music on MP3s4free.net.
Upholding a single judge's ruling from last summer, the appeals panel agreed that linking runs afoul of Australia's copyright laws, handing a victory to Universal Music Australia and the other major labels that brought the suit in 2004.
"A principal purpose of the Web site was to enable infringing copies of the downloaded sound recordings to be made," Judge Susan Kenny wrote in her opinion. "The fact that the Web site also carried a warning that some downloading could be illegal did not lessen the force of the invitation."
Cooper, a resident of the state of Queensland, had argued that he had no power to prevent illegal copying because users could "automatically" add links to the site without his control. He likened his site to Google's search engine as a mechanism for pointing users to other sites--an analogy that one judge deemed "unhelpful," in part because Google was not designed exclusively to facilitate music downloads. The opinion also noted that even the search giant is not always free to link to everything it wishes.
Furthermore, Cooper's "deliberate choice" to set up the site in such a way that he couldn't restrict access to copyright files when he could have designed it otherwise rendered him guilty of authorizing copyright infringement, the judges said in a multipart opinion.
This is not the first time that linking to illicit material has been deemed illegal. In 2001, a U.S. federal appeals court ruled that a news organization could be prohibited from linking to software that can decrypt DVDs. "The injunction's linking prohibition validly regulates (2600 Magazine's) opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs," the appeals court said. A Dutch court in 1999 reached a similar conclusion.
The Australian judges also agreed with an earlier court ruling determining that E-Talk, the company that hosted the MP3s4free site, and Comcen Internet Services, E-Talk's parent company, had also broken the law because they did not do enough to stop Cooper from committing copyright violations.
"Rather than withdrawing hosting of Mr. Cooper's Web site, or otherwise placing pressure on Mr. Cooper to stop his Web site (from) being used for the predominant purpose of copyright infringements, E-Talk sought to achieve a commercial advantage from advertising on Mr. Cooper's Web site," Judge Catherine Branson wrote.
The court did overturn a guilty verdict against Comcen employee Chris Takoushis, saying there was no evidence to suggest that Takoushis had the authority to personally terminate Cooper's site--or compel his employer to do so.
Sabiene Heindl, general manager of an Australian company called Music Industry Piracy Investigations, hailed the court's decision as a victory for Australian record labels.
"Internet service providers have an important role in ensuring that wholesale music copyright infringement is not taking place on their networks, and this judgment sends a clear message to the industry that operators are at risk of being held liable if they are doing the wrong thing," Heindl said in a statement.
Attorneys for Cooper were not immediately available for comment.
As previously reported, Music Industry Piracy Investigations first suspected Cooper's site of piracy in December 2002 and raided his premises as part of a broader sweep of Internet file-sharing sites in 2004.
According to the Australian investigators, Cooper's site recorded a total of 191,296,511 hits to the site, with 7,081,899 unique visitors, between November 2002 and October 2003. During that same time, 1.97 terabytes of data were downloaded from the site.
CNET News.com's Declan McCullagh contributed to this report.
