Australian Court Holds Search Engine Liable for Illegal Music Downloads

CANBERRA, Australia – Providing Web links to copyright-protected music is enough to make a site legally liable, an Australian court ruled in a case that created legal uncertainty for search engines around the world.

The full bench of the Federal Court, the country's second-highest court, has upheld a lower court ruling that Stephen Cooper, the operator of the Web site in question, as well as Comcen, the Internet service provider that hosted it, were guilty under Australian copyright law.

They were accused of authorizing copyright infringement because they provided a search engine whose results linked to songs available for illegal download, even though the Web site did not store the music files directly.

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Cooper had argued that his Web site performed a function comparable to search engines such as Google Inc. (GOOG), which is based in Mountain View, Calif.

But Judge Catherine Branson wrote in Monday's ruling that "Cooper's assumption that Google's activities in Australia do not result in infringements ... is untested."

Electronic Frontiers Australia, a civil-liberties group, said the decision "will create significant uncertainty for Internet publishers from Google to your average Internet user who posts on a message board."

"If Google's search engine links to material which infringes on copyright and this material was accessed by Australians, then there is potential for legal action," EFA chairman Dale Clapperton said. "What's clear from this judgment is that Australian companies have a higher level of liability than in the United States."

Australian courts have attempted to claim jurisdiction over U.S.-based Web sites before.

In 2002, the High Court of Australia unanimously ruled that a defamation lawsuit against Dow Jones & Co. (DJ) could proceed in Australia because people there could have read the article online. The case was eventually settled.

In the latest case, Cooper was prosecuted by Music Industry Piracy Investigations Pty. Ltd., a company owned by recording labels including Vivendi SA's Universal Music Group, Warner Music Group Inc. (WMG), EMI Group PLC and Sony BMG Music Entertainment, a joint venture of Sony Corp. (SNE) and Bertelsmann AG.

Cooper and Comcen were ordered to remove the Web site and pay MIPI's court costs. Comcen did not appeal the decision, but Cooper did.

MIPI general manager Sabiene Heindl agreed that the case could have implications for search engines such as Google, but she said Cooper "had a very highly organized Web site that was targeting music files and that's very different to what Google and other search engines do in a more generic sense."

Heindl said the ruling was particularly significant because Cooper's Internet service provider was found liable. In the United States, service providers generally aren't liable for their users' conduct, though they must respond when contacted by copyright holders.

"It certainly sent a clear message that ISPs have to take more responsibility" when notified of infringement, she said.