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cyberlaw:intermediaries_copyright [2019/09/12 14:22]
220.233.35.68
cyberlaw:intermediaries_copyright [2019/09/25 17:22] (current)
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 ### Cooper v Universal Music Australia Pty Ltd (2006) 237 ALR 714 (“Cooper”) ### Cooper v Universal Music Australia Pty Ltd (2006) 237 ALR 714 (“Cooper”)
  
-**Video Overview of Cooper v Universal by [Ross Snell](https://​www.youtube.com/​watch?​v=y_pLPmnrmf4)**+**Video Overview of Cooper v Universal by [Ed Green](https://​www.youtube.com/​watch?​v=6VDB6P3GedA)**
  
-The defendant ran a website, ‘MP3s4FREE’,​ which contained a list of hyperlinks that directed users to other websites where they could download infringing music files. Visitors would submit links to music files through an automated form and Cooper exercised no editorial control over the links. In this case, the court was influenced by evidence that the defendant deliberately designed his website to facilitate the infringing downloading of sound recordings. The court held that Cooper had the power to prevent infringement by exercising supervision or control – editorial responsibility. Their Honours considered the defendant’s financial benefit derived from the website to be relevant to the second statutory factor – the nature of the relationship between the alleged authoriser and the primary infringer – because it made the relationship into a commercial one. They also held that the defendant had not taken any reasonable steps to prevent or avoid the infringements occurring as a result of his website. They accordingly found Cooper liable for authorisation.+The defendant ran a website, ‘MP3s4FREE’,​ which contained a list of hyperlinks that directed users to other websites where they could download infringing music files. Visitors would submit links to music files through an automated form and Cooper exercised no editorial control over the links. In this case, the court was influenced by evidence that the defendant deliberately designed his website to facilitate the infringing downloading of sound recordings. ​ 
 + 
 +The court held that Cooper had the power to prevent infringement by exercising supervision or control – editorial responsibility. Their Honours considered the defendant’s financial benefit derived from the website to be relevant to the second statutory factor – the nature of the relationship between the alleged authoriser and the primary infringer – because it made the relationship into a commercial one. They also held that the defendant had not taken any reasonable steps to prevent or avoid the infringements occurring as a result of his website. They accordingly found Cooper liable for authorisation.
  
 The court also found Cooper'​s ISP liable for authorisation. The ISP had provided free hosting in exchange for advertising on the high traffic site. The ISP and its directors had knowledge, derived a direct financial benefit, had the power to take the site down, and took no reasonable steps to prevent infringement. The court also found Cooper'​s ISP liable for authorisation. The ISP had provided free hosting in exchange for advertising on the high traffic site. The ISP and its directors had knowledge, derived a direct financial benefit, had the power to take the site down, and took no reasonable steps to prevent infringement.
 +
 +The appellants attempted to rely on the s 112E exception to the s 101(1). However, the Court concluded that both parties had done more than merely facilitate the infringements by others, and therefore, the exception could not apply to the appellants. As the exception did not apply, the Court concluded that the primary judge was correct as Cooper and E-Talk had authorised the copying and communication of copyright sound recordings. The Court dismissed the appeals. ​
  
 ## The Intervening Years: BitTorrent ## The Intervening Years: BitTorrent
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-### A & M Records, Inc. v. Napster, Inc. 239 F. 3d 1004 (9th Cir. 2001) ("​Napster"​)+#### A & M Records, Inc. v. Napster, Inc. 239 F. 3d 1004 (9th Cir. 2001) ("​Napster"​)
  
 **Video Overview of the Naspter Decision by [Evan Price](https://​www.youtube.com/​watch?​v=S2kLe-sqKj4)** **Video Overview of the Naspter Decision by [Evan Price](https://​www.youtube.com/​watch?​v=S2kLe-sqKj4)**
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 The court acknowledged the importance of the Sony rule, stating, “Absent specific information which identifies infringing activity, a computer system operator cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyrighted material” (at 1021). The court found, however, that Napster did have specific knowledge of the infringing files as well as an ability to remove these files from its system, and on these grounds the court distinguished Napster from Sony and found Napster to be liable for contributory infringement. The court also found Napster to be vicariously liable because it received a direct financial benefit from advertising sales and had both the right and ability to control the infringement by filtering or blocking the exchange of the infringing files or blocking infringing users from its service. The court acknowledged the importance of the Sony rule, stating, “Absent specific information which identifies infringing activity, a computer system operator cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyrighted material” (at 1021). The court found, however, that Napster did have specific knowledge of the infringing files as well as an ability to remove these files from its system, and on these grounds the court distinguished Napster from Sony and found Napster to be liable for contributory infringement. The court also found Napster to be vicariously liable because it received a direct financial benefit from advertising sales and had both the right and ability to control the infringement by filtering or blocking the exchange of the infringing files or blocking infringing users from its service.
  
-##The Next Generation: Aimster, Grokster, StreamCast, Kazaa+## The Next Generation: Aimster, Grokster, StreamCast, Kazaa
  
 Since Napster was liable because it had knowledge of the files shared on the network (contributory liability) and a centralised point of control (vicarious liability), the next generation of filesharing software was developed to have no central servers. Since Napster was liable because it had knowledge of the files shared on the network (contributory liability) and a centralised point of control (vicarious liability), the next generation of filesharing software was developed to have no central servers.
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   * The networks were designed to operate autonomously,​ with no central control. The central agent provided the software, but after the software was connected to the network, the network would pass on search requests, and transfer files without any intervention from a central server.   * The networks were designed to operate autonomously,​ with no central control. The central agent provided the software, but after the software was connected to the network, the network would pass on search requests, and transfer files without any intervention from a central server.
  
-### MGM Studios Inc., v. Grokster Ltd. 545 U.S. 913 (2005)+#### MGM Studios Inc., v. Grokster Ltd. 545 U.S. 913 (2005) 
 + 
 +**[Overview of the Grokster Case](https://​www.youtube.com/​watch?​v=TZVFGDJEhZ4) by Joe Sherman**
  
 The Sony rule was narrowed somewhat in the 2005 decision, Metro-Goldwyn-Mayer Studios Inc., v. Grokster Ltd. (Grokster), another p2p file-sharing case.  ​ The Sony rule was narrowed somewhat in the 2005 decision, Metro-Goldwyn-Mayer Studios Inc., v. Grokster Ltd. (Grokster), another p2p file-sharing case.  ​
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 Relevant to the court’s finding was that the library had an access policy which stated that only single copies of materials would be provided for the purposes of research, review, private study and criticism as well as use in legal proceedings,​ and that any requests for copies in excess of 5% of the volume would be referred to the Reference Librarian and might be refused. ​ Additionally,​ the service was provided on a not for profit basis. ​ Also relevant was that there were no apparent alternatives to the custom photocopy service – the court considered it unreasonable to expect that patrons would always conduct their research onsite, particularly as 20% of the library’s patrons lived outside the Toronto area.  The court held that the availability of a licence is not relevant to deciding whether a dealing has been fair and that it was not incumbent upon the Law Society to adduce evidence that every patron uses the material provided in a fair dealing manner – reliance on a general practice would suffice. Relevant to the court’s finding was that the library had an access policy which stated that only single copies of materials would be provided for the purposes of research, review, private study and criticism as well as use in legal proceedings,​ and that any requests for copies in excess of 5% of the volume would be referred to the Reference Librarian and might be refused. ​ Additionally,​ the service was provided on a not for profit basis. ​ Also relevant was that there were no apparent alternatives to the custom photocopy service – the court considered it unreasonable to expect that patrons would always conduct their research onsite, particularly as 20% of the library’s patrons lived outside the Toronto area.  The court held that the availability of a licence is not relevant to deciding whether a dealing has been fair and that it was not incumbent upon the Law Society to adduce evidence that every patron uses the material provided in a fair dealing manner – reliance on a general practice would suffice.
 +
 +## Recent developments
 +
 +### European Copyright Directive: the 'link tax' (Article 15)
 +
 +**Video overview by Katherine Karan on the ['Link Tax'​](https://​www.youtube.com/​watch?​v=6xpSsvpuQKU)**
 +
 +Article 15 (previously known as draft Article 11) provides a new copyright rules to allow news websites to be remunerated for their work when displayed or promoted on large commercial platforms, such as Facebook or Google. This does not affect private or non-commercial users. It is designed to increase compensation to the publishers of news articles. ​
 +
 +Because the link tax is yet to implemented by countries of the EU, it remains to be seen how states will deal with the ambiguities and potential adverse effects of Article 15. For instance, each platform will only be permitted to present a very short extract of the news article without breaching copyright, however it is at the country’s discretion to determine what constitutes a “very short extract”. This link tax will also have a major potential impact on small news websites that may see less traffic as a result. Exceptions do exist to this link tax, such as individual words, copyright expiry dates and hyperlinks. ​
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