On July 14, 2004, the Federal Court of Australia handed down a decision in Universal Music Australia Pty Ltd. v. Cooper, involving linking from a website Mp3s4free that contained unauthorized copies of sound recordings. Since the opinion involves niceties of Australian law, I shan't offer any opinions about it, but instead refer readers to Australian commentators, beginning with Kim Weatherall's blog and ZD Net. The opinion turns on an interpretation of the Australian Digital Agenda Act of 2000, in particular whether a "communicating a recording to the public" occurred. Justice Tamberlin's opinion, though, does rely on U.S. courts for a description of linking, in particular Judge Kaplan's (see yesterday's posting) opinion in Universal City Studios, Inc. v. Remierdes, 111 F. Supp.2d 294, 324 (S.D.N.Y. 2000), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001, amended Jan. 29, 2002). It may be recalled that in Remierdes, Judge Kaplan issued an injunction against linking to any other website that contained DeCSS. That injunction was upheld against constitutional challenge.
There are safe harbors for some linking in Section 512(d), put in as part of the DMCA, and this provision has been noted in a number of opinions, e.g., In re Charter Communications, Inc. Subpoena Matter, 393 F.3d 771, 775-776 (8th Cir. 2005); RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229, 1234 (D.C. Cir. 2003); Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp.2d 1077 (C.D. Cal. 2004), and Online Policy Group v. Diebold, Inc, 337 F. Supp.2d 1195 (N.D. Cal. 2004).
Non-DMCA linking cases include Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. Aug. 29, 2002); Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. 2000); Los Angeles Times v. Free Republic, 56 USPQ2d 1862 (C.D. Cal. 2000)(consent judgment); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp.2d 1290 (D. Utah 1999) and Bernstein v. J.C. Penney, Inc., 1998 U.S. Dist. LEXIS 19048 (C.D. Cal. 1998). There are some obscure cases too, like Batesville Services, Inc. v. Funeral Depot, Inc., 2005 U.S. Dist. LEXIS 24336, *31-33 (S.D. Ind. Nov. 10, 2005), where the court granted summary judgment prohibiting a website from linking to a lawfully displayed picture of (yes) caskets because the court believed that defendant, in conjunction with the website owner was trying to circumvent a restriction on such displays on defendant's own site. (The remainder of the opinion is just as horrible.)
In evaluating linking claims we should distinguish between direct infringement and those of third party liability. Claims of direct infringement via linking (whether non-active or active) should fail because there is no exclusive right implicated: there is no reproduction and there is no display on the defendant's site; instead the display is on the user's monitor. The same is true for framing claims. Whether third party liability occurs where there is a link to infringing material and the person who provides the link knows the infringing material is at the linked site presents pressing post-Grokster problems. Is linking in such circumstances like someone asking me as I am walking in DuPont Circle whether I know where bootlegs can be bought and I say, "Yeah, one block away on 1331 Connecticut Ave. N.W. " at "AAIR," or is it "inducing" in the Grokster/patent law sense? Only The Shadow Knows, but the rest of us are likely to find out only after a new wave of litigation.