Allowing Linking To MP3s Still Illegal In Australia; Ruling Will Hurt Both Tech And Entertainment Industries
from the following-up dept
A year and a half back, an Australian court ruled that a website with links to mp3 files was illegal — even though the site did not host any of the infringing files. Basically, the guy had set up an open links page, allowing anyone to add URLs that link to freely available mp3s, with no determination of whether the track was authorized to be shared or not. While the guy claimed, reasonably, that simply linking to files shouldn’t be considered infringement (and that he warned users that the links may not be authorized copies), the court disagreed, suggesting a similar “inducement” standard that the US is now using following the Supreme Court’s Grokster decision. In Australia, the case was appealed, but a three-judge panel has once again ruled against the site, arguing that since the “principal purpose” of the site was to guide people to infringing content, it was illegal. They also rule that since the guy set up the site without putting in place protections to block unauthorized songs, it contributes to his guilt.
Both of these points should be very worrying, as they create quite a slippery slope when it comes to new technologies and the potential for the technology to be ruled illegal, rather than the uses of the technology. Traditionally, in the US at least, we’ve used the “Betamax test” which looked for “substantial non-infringing uses.” That meant that even if the “principle purpose” of a technology was infringement, it should still be allowed if there were substantial non-infringing uses. This was what saved the VCR from being declared illegal. However, if the entertainment industry (which only much later learned to embrace the VCR) could have used a “principle purpose” test, the VCR would be dead. So would plenty of other technologies. On top of that, the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs. It’s setting up a path for reduced innovation and great stagnation within the tech industry — and eventually the entertainment industry as well. As the eventual success of the VCR showed, when the entertainment companies learn to embrace these technologies, there’s tremendous opportunity to profit. In fact, the VCR helped revive the movie industry. Unfortunately, the next batch of technologies that could help grow the entertainment industry are likely to never see the light of day (or not see it for very long) if courts keep making rulings like this one.