Regional Overviews
171
engine through which users could find and
download copyright-protected music for free. In
its ruling, the court found that merely linking to
copyright-protected material was grounds for
infringement. In addition, the court found that ISP
E-Talk was also liable for copyright infringement
because it posted advertisements on the site and
was unwilling to take the site down. 47
Interestingly, Dale Clapperton of Electronic
Frontiers Australia has argued that this decision
could be used against search engines such as
Google. In an article in the Sydney Morning
Herald, he stated that “what Cooper was doing is
basically the exact same thing that Google does,
except Google acts as a search engine for every
type of file, while this site only acts as a search
engine for MP3 files.” 48
In New Zealand, there is no legislation in
effect that explicitly relates copyright law to the
Internet. Current New Zealand copyright law is
contained within the Copyright Act 1994, which
makes exceptions for time-shifting of television
programs but none for format- or space-shifting
of content. In addition, copyright is set at life +
fifty years. 49
The Copyright (New Technologies and
Performers’ Rights) Amendment Bill currently
being considered in New Zealand, however,
would dramatically change the digital copyright
landscape into one that more closely mirrors the
Digital Millennium Copyright Act (DMCA) of the
United States. If passed, the bill would allow for
format-shifting and space-shifting of music, 50
criminalize the distribution of the means to
subvert technological protection measures
protecting copyrighted content, and establish a
system in which ISPs are required to remove
copyright-infringing content and notify the poster
if “[the ISP] obtains knowledge or becomes
aware that the material is infringing.” 51 This
removal system is somewhat different from the
U.S. system of notice-and-takedown in that it
requires knowledge of infringement and not
simply notification. 52
Defamation
Through a variety of court cases, both Australia
and New Zealand have applied their respective
defamation laws to the Internet, and both countries, with New Zealand courts following the
Australia courts’ example, have controversially
expanded their jurisdiction in defamation suits to
online materials hosted outside of their borders.
Defamation in Australia, except for a small
range of cases, is handled through state and territorial law. 53 And until December 2005, states
and territories maintained largely nonuniform
codes of defamation. 54 After what amounted to a
threat that the Commonwealth would act if states
and territories did not, the states and territories
finally decided to enact uniform laws in
December 2005. 55 Since defamation laws in
Australia are applied where material is seen,
read, or experienced, nonuniform laws meant
that writers and publishers had to be wary of different sets of laws all over the country under
which they might be sued under various definitions of defamation. 56 Now the laws are uniform,
so this liability risk has been mitigated. No legislation specifically targets defamation on the
Internet and, therefore, its regulation is essentially the same as that for all other publications. 57
The judiciary has played an important role in
setting online defamation policy because of jurisdictional issues. In a major decision in December
2002, the Australian High Court ruled that a party
within Australia can sue a foreign party in
Australian court for defamation resulting from an
online article hosted on a foreign server. The specific case involved a lawsuit pitting Joseph
Gutnick, an Australian businessman, against
Dow Jones over a defamatory article written
about him in Barron’s Online in October 2000.
Dow Jones argued that since its servers (and
therefore the article) are in the United States, the
defamation case should have been tried in the
United States. A decision allowing the case to be
tried in Australia, they argued, would restrict free
speech around the world because it would
171
engine through which users could find and
download copyright-protected music for free. In
its ruling, the court found that merely linking to
copyright-protected material was grounds for
infringement. In addition, the court found that ISP
E-Talk was also liable for copyright infringement
because it posted advertisements on the site and
was unwilling to take the site down. 47
Interestingly, Dale Clapperton of Electronic
Frontiers Australia has argued that this decision
could be used against search engines such as
Google. In an article in the Sydney Morning
Herald, he stated that “what Cooper was doing is
basically the exact same thing that Google does,
except Google acts as a search engine for every
type of file, while this site only acts as a search
engine for MP3 files.” 48
In New Zealand, there is no legislation in
effect that explicitly relates copyright law to the
Internet. Current New Zealand copyright law is
contained within the Copyright Act 1994, which
makes exceptions for time-shifting of television
programs but none for format- or space-shifting
of content. In addition, copyright is set at life +
fifty years. 49
The Copyright (New Technologies and
Performers’ Rights) Amendment Bill currently
being considered in New Zealand, however,
would dramatically change the digital copyright
landscape into one that more closely mirrors the
Digital Millennium Copyright Act (DMCA) of the
United States. If passed, the bill would allow for
format-shifting and space-shifting of music, 50
criminalize the distribution of the means to
subvert technological protection measures
protecting copyrighted content, and establish a
system in which ISPs are required to remove
copyright-infringing content and notify the poster
if “[the ISP] obtains knowledge or becomes
aware that the material is infringing.” 51 This
removal system is somewhat different from the
U.S. system of notice-and-takedown in that it
requires knowledge of infringement and not
simply notification. 52
Defamation
Through a variety of court cases, both Australia
and New Zealand have applied their respective
defamation laws to the Internet, and both countries, with New Zealand courts following the
Australia courts’ example, have controversially
expanded their jurisdiction in defamation suits to
online materials hosted outside of their borders.
Defamation in Australia, except for a small
range of cases, is handled through state and territorial law. 53 And until December 2005, states
and territories maintained largely nonuniform
codes of defamation. 54 After what amounted to a
threat that the Commonwealth would act if states
and territories did not, the states and territories
finally decided to enact uniform laws in
December 2005. 55 Since defamation laws in
Australia are applied where material is seen,
read, or experienced, nonuniform laws meant
that writers and publishers had to be wary of different sets of laws all over the country under
which they might be sued under various definitions of defamation. 56 Now the laws are uniform,
so this liability risk has been mitigated. No legislation specifically targets defamation on the
Internet and, therefore, its regulation is essentially the same as that for all other publications. 57
The judiciary has played an important role in
setting online defamation policy because of jurisdictional issues. In a major decision in December
2002, the Australian High Court ruled that a party
within Australia can sue a foreign party in
Australian court for defamation resulting from an
online article hosted on a foreign server. The specific case involved a lawsuit pitting Joseph
Gutnick, an Australian businessman, against
Dow Jones over a defamatory article written
about him in Barron’s Online in October 2000.
Dow Jones argued that since its servers (and
therefore the article) are in the United States, the
defamation case should have been tried in the
United States. A decision allowing the case to be
tried in Australia, they argued, would restrict free
speech around the world because it would