Early Hyperlinking Precedent Hits High Note
By Robin D. Gross
September 1999
The recent prosecution of Swedish teen, Tommy Olsson, for "Internet music piracy" tackled unexplored questions about the legality of linking to copyrighted music on the Web. On September 15, 1999 a Swedish court ruled, in the first case of its kind, that since Olsson did not copy, distribute, nor spread the pirated music files, he was not guilty of music piracy.
The seventeen-year-old Swede built a Web page that offered links to music files at other Web sites, some of which pointed to unauthorized copyrighted music. The Swedish branch of the International Federation of the Phonographic Industry (IFPI), a trade group that represents 53 record companies, brought charges against Olsson alleging that he was distributing copyrighted songs for free on his Web site -- simply by linking to them.
However, "linking" on the Web simply directs others to the location where a particular file is physically stored on a networked server. It does not address the underlying question of whether the music files constitute authorized or unauthorized copies. In the U.S., merely providing someone with information that may be used for illegal purposes is protected speech under the First Amendment to the Constitution.
This decision marks the first European music piracy case to make its way into the courts where the accused never illegally copied nor distributed music files. As such, a guilty verdict would have set a strong precedent and significantly hampered speech on the Net. Since the Web itself is a collection of hyperlinks, nearly every Web page is probably a few clicks away from material that may violate someone's copyright, and is therefore potentially liable under IFPI's legal theory.
Search engines, for example, link to millions of pages where both lawful and unlawful content can be found. Many of these engines, like Altavista and Lycos, use automated Web spiders to reference the rapidly expanding content on the Internet. Requiring both individual Web publishers and search engines to verify all copyrights before linking or face legal sanctions would seriously undermine the very feature that makes the Internet such a unique medium.
Pressing charges against Olsson also overlooked the fact that he made it easier for the recording industry to identify sites distributing illegally copied music. Instead of shooting the messenger, the industry would be better served by going after the Web site publishers who actually copied and distributed the unauthorized music files.
While the Swedish court ruled that the act of linking or directing someone to unauthorized copyrighted music does not constitute "Internet music piracy," it left open the door regarding the charge of "complicity to copyright infringement." Since that charge was not filed, the case against Olsson was dismissed. Earlier this year, IFPI filed a lawsuit against Lycos' partner in Norway, FAST MP3, alleging contributory copyright infringement for linking to illegal MP3s. U.S. search engines that link to infringing material are protected from liability under the Digital Millennium Copyright Act, as long as they immediately block access to or take down files alleged to be unauthorized.
The Swedish verdict is the first in Europe to address the thorny issue of linking to illegal music on the Web and the ruling sets a clear precedent: to be in violation of Internet music piracy laws, Web site publishers must either copy or distribute the unauthorized music.