Can hyperlinks infringe copyright?

It appears that the long-running case involving an Australian site linking to free unlawful copy mp3's is over.

ZDnet reports that judgment has been given in favour of the record companies. (Online reasons for judgment not available yet).

A good summary of the site owner's argument is set out here.

Copyfight asks "what does this mean for search engines?"

UPDATE: Here are the reasons for judgment.: Universal Music Australia Pty Ltd v Cooper [2005] FCA 972

But does it mean that hyperlinking can infringe copyright?

Not necessarily.

While Cooper (the website owner) had copies of unauthorised mp3's on his own hard drive, the judge refused to find that Cooper had communicated the recordings from his website:

"63 I am not satisfied that the Cooper website has "made available" the music sound recordings within the meaning of that expression.  It is the remote websites which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website.

64 As discussed above, the evidence indicates that no music sound recordings are actually stored on the Cooper website.  The music sound recordings have initially been made available to the public by being placed on the remote websites.  The evidence given by Mr Beckett was to the effect that the digital music files to which links were provided on the Cooper website were also available to users through the internet generally.  That is, internet users can access the music sound recordings via an alternative route by directly accessing the remote websites, either by typing that website’s URL address into the address bar on the user’s internet browser or by using a search engine such as Google or Yahoo, rather than by visiting the Cooper website...

65 The Cooper website contains hyperlinks to thousands of sound recordings which are located on remote websites and are downloaded directly from those websites to the computer of the internet user.  When a visitor to the Cooper website clicked on a link on the website to an MP3 file hosted on another server, this caused the user’s browser to send a "GET" request to that server, resulting in the MP3 file being transmitted directly across the internet from the host server to the user’s computer.  The MP3 file does not pass through or via or across the Cooper website.  The Cooper website facilitates the easier location and selection of digital music files and specification to the remote website, from which the user can then download the files by clicking on the hyperlink on the Cooper website.  However, the downloaded subject matter is not transmitted or made available from the Cooper website and nor does the downloading take place through the Cooper website.  While the request that triggers the downloading is made from the Cooper website, it is the remote website which makes the music file available and not the Cooper website.

66 The applicants also submitted that Cooper, by establishing and operating the website, has "electronically transmitted" the sound recordings. I am of the view that Cooper cannot be said to have transmitted the sound recordings. In my view, the actual transmission of the music sound recording begins with the commencement of the downloading of the recording from the remote website on which the recording is located to the end user.  I accept that the electronic transmission of the sound recording to a user who triggers the hyperlink on the Cooper website is a communication to a member of the public from the remote website, however, it is not a transmission from the Cooper website.

67 Accordingly, for these reasons, I do not consider that Cooper has "communicated" the sound recording to the public.  That is, Cooper has not made the sound recording available to the public or electronically transmitted it to the public. 

68 I do consider, however, that the remote websites have made available online and electronically transmitted the music sound recordings to the public."

However the Judge found Cooper "permitted or approved, and thereby authorized, the copyright infringement by internet users who access his website and also by the owners or operators of the remote websites from which the infringing recordings were downloaded."

84 The Cooper website is carefully structured and highly organised and many of its pages contain numerous references to linking and downloading.  The website also provides the hyperlinks that enable the user to directly access the files on, and activate the downloading from, the remote websites.  The website is clearly designed to, and does, facilitate and enable this infringing downloading.  I am of the view that there is a reasonable inference available that Cooper, who sought advice as to the establishment and operation of his website, knowingly permitted or approved the use of his website in this manner and designed and organised it to achieve this result.

The claim that Cooper was exposing or offering for sale the sound recordings was rejected as there was no sale or trade between Cooper and the user or the owners or operators of the remote websites.

UPDATE 2: Kim Weatherall's comments