Australia to watch Diebold hyperlinking case

November 19, 2003
URL: http://www.zdnet.com.au/newstech/ebusiness/story/0,2000048590,20281207,00.htm

The legality of hyperlinks is back under the spotlight again, and Australia will be watching for the decision of a U.S. federal judge who is considering whether to issue an injunction to prevent a company issuing cease-and-desist letters in relation to hyperlinks.

Diebold Election Systems, the company criticised over its e-voting system, has used the Digital Millenium Copyright Act (DMCA) as justification for sending letters to universities, ISPs, non-profit groups and individuals who hyperlinked to online archives allegedly copied illegally from Diebold's internal servers last March, according to media reports. The documents reportedly cover internal discussions concerning ongoing security issues and software bugs.

In response, the Electronic Frontier Foundation sought an injunction against Diebold doing this on behalf of the Online Policy Group, a non-profit ISP.

The decision, while not directly affecting Australia, is likely to be watched because of a case currently before the courts. Sydney ISP ComCen is locked in a legal battle with six large record companies over the Web site mp3s4free.net, which contained links to a number of copyright-infringing MP3 files.

ComCen claim the site only contained hyperlinks, and therefore acted as a search engine. The record companies disagree, claiming the act of setting up a site containing hyperlinks to copyright-infringing material is itself a copyright-infringing act.

The Australia case is likely to set a precedent for two issues. The first is whether an ISP can and/or should be held liable for the content hosted on their servers, and the second is whether linking to copyright-infringing material constitutes a copyright-infringing act. Although the US case will have no direct bearing on the Australian case, judges and magistrates often consider similar judgements in overseas jurisdictions when considering their decision.

For example, when deputy chief magistrate Graeme Henson was sentencing three students charged with music piracy he considered the sentences handed down in similar cases in the U.S. and U.K. before delivering his verdict.