SEOSEM in OZ

Musings on the Australian Copyright Law

The more I read the last year's comments, submissions, and debate, the more I have to wonder how these people could possibly have written this law. No other country on the face of the Earth, other than possibly Communist China, has a more restrictive law on the books.
Australian legislators have put into force a law that makes Australia a regressive, restrictive society. There just isn't another way of putting it.

And further, how could a three judge panel from the Australia High Court take the law to an even more irrational and restrictive level before the ink is even dry?

I don't really expect to see an answer to these questions, much less the truth. It would be refreshing though.
Even more refreshing would be to see the law revoked immediately, and that panel of judges made redundant before they do more harm. That may be only slightly more likely than the truth, but it won't happen either.

Note: Until this analysis, the option appeared to be available for Australian webmasters and owners to buy a pair of TLDs - one in Australia and the other international - then using geo-location and redirects, to have exposure to both Australia and the rest of the world. Since the Cooper judgment extends the jurisdiction of Australian Copyright Law to an international TLD, that sort of adjustment won't be possible.
Indeed, nearly everything that might have been done programmatically to avoid prosecution by Australian website owners and ISPs appears to be useless.

What restrictive copyright laws may mean to small business in Australia pt 2

What restrictive copyright laws may mean to small business in Australia pt 2    

Let's look at the changes in Australian copyright law and recent rulings in terms of search engine optimization (SEO) and saerch engine marketing (SEM).

SEO
The major search engines have been the driving force behind web developers compliance with W3C recommendations.
Australian websites will not be under such pressure to comply with doctypes and coding conventions as the rest of the world. The pressure to move design for XML (XHTML) will be significantly less for Australian websites.
Programs such as Microsoft Frontpage, which really produces websites for only IE, may be more acceptable in Australia. Some browsers simply will not be able to interpret Australian websites in a reasonable fashion.
Perhaps the government will offer subsidies or grants from the monies collected in copyright fines to Australian companies who comply with the W3C standards.

What restrictive copyright laws may mean to small business in Australia

What restrictive copyright laws may mean to small business in Australia    

If the restrictive copyright laws remain, the nature and value of the Internet to Australia and especially to small business will change dramatically.
Looking at the present situation, when someone wants a product or service they turn to search engines Google (80%) and Yahoo! (15%) 95% of the time. The results returned are based on the search terms based on "Relevance". Relevance means the first sites contain the search terms, and supplementary results from other websites based on similar terms or partial matches with the search terms. That's search results often number thousands or even millions.

ISPs blamed for cuts in bandwidth

If there was any question that the new copyright law will have a significant influence on broadband providers and the spread of broadband, it is gone now.

Here is a recent example.
A major Australian ISP, exetel, has been contacted by an unnamed "legally constituted authority" and ordered to cut bandwidth or delete the acounts of a number of its customers suspected of copyright infringements. exetel responded that it had a warning in its Terms of Service against illegal activity. The unnamed authority's response that that was insufficient.
The customers' accounts were suspended or set to limited bandwidth.

Although exetel informed its customers of the reason for these actions, the customers response was to blame exetel for trying to cut the load on its servers.
One user announced that it was time to "churn" to another ISP after complaining that he and other high volume P2P users paid for the added bandwidth and was one of the most profitable customers. A response was made that many P2P players left their systems on all the time and surreptitiously acted as servers, which was also against the Terms of Service.

A moot point between exetel customers seems to be whether low volume or high volume users are more profitable. exetel is being blamed for using the new copyright regime to rid itself of the high volume users to increase profits. What the real numbers are here may never come out. Some of the comments seem to come from knowledgeable people.

Another exetel customer threatened to send a letter to exetel stating that in limiting or suspending accounts exetel was in breach of contract and its fiduciary responsibilities. How that works out I'm not sure.
Overall, exetel is being blamed for serving its own interests.

Copyright Law in Australia - SEO Alternatives

SEO is website design for a specific goal: to help the website accomplish business goals.
One of those business goals is to remain within the law.

As Kim Weatherall notes (from "Cooper - how linking in Australia can land you in hot legal water":

Here's one favourite quote that captures some of the flavour of the Branson judgment:

'Mr Cooper placed considerable weight on a suggested analogy between his website and Google. Two things may be said in this regard. First, Mr Cooper's assumption that Google's activities in Australia do not result in infringements of the Act is untested.'

This quote is striking. Not because it is inaccurate. On its terms, it is obviously perfectly true. No one has sued Google here yet. What is striking is that a statement as potentially momentous as this: that the activity of running a search engine - one of the fundamental activities that makes the 'Internet work' these days could well be infringement, we don't know - can be said without the merest bat of a judicial eyelash.

Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to 'work' in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work?  Did all this debate completely pass the members of the court by?

Leaving aside that Australian Copyright Law has created broad liability for a moment, there are two key legal concepts that may offer some design options, at least in the interim: Authorization and Relationship. I'm going to lean on wiser and more learned shoulders here a little. Further in the same article by Ms Weatherall:

Now, in broad terms, the law is:

1. a person can be liable both for infringing copyright, and for authorising infringement (ss36, 101)


2. 'authorise' has a meaning developed in the caselaw - basically, 'sanction, coutenance or approve'.  The classic old case on this was Moorhouse, in which a university was held liable because it provided coin-operated photocopiers right beside the books with no control and no steps to limit infringement;


3. according to legislation introduced in 2000 and designed, allegedly, to codify common law and provide 'certainty', in assessing authorisation, courts must take into account three things:

• the extent (if any) of the person’s power to prevent the doing of the act concerned
  

• the nature of any relationship existing between the person and the infringer;


• whether the person took any other reasonable steps to prevent or avoid the infringement.

Any website or webpage can authorize infringement by linking. If the Cooper judgment is allowed to stand, that is established. But there are design elements which can be employed to define the nature of the relationship between the visitor to a website and website, and to limit the liability of authorization.
What if Cooper had popped up a box on every link that said:

Warning! This link may lead to copyright protected material.
Please contact the owner of the website to ensure your activities do not infringe on Intellectual Property rights.

The Justices considered the name of his website and the stated purpose of his search engine in determining the relationship and authorization. Such a warning may not have saved Mr Cooper.
However, it might offer some options to web designers in Australia to protect themselves and their clients.

Broadband in Oz

Sometimes you have to wonder if the different departments of the Australian federal government ever talk to one another, or if it's just a lot of people wandering around showing off their titles at dinner parties.
In light of the new restrictive copyright laws, the statements from the Minister of Communications, Information Technology and the Arts, Senator Helen Coonan's report about the advance of broadband access across Australia (PDF file) sound a little unrealistic.

The digital content industry plays a vital role in driving the growth of broadband services, including digital TV, film and radio, mobile phones and gaming. Five years ago this industry was tiny. It now employs 300 000 people in some 95 000 firms and is worth $21 billion to the Australian economy.

Much of the innovative content in Australian games, animation, film post production and advertising originates with small-to-medium creative firms. The health sector has also recognised the benefits of digital content in delivering health services, for example, remote diagnostic work. The education sector is increasing the range of curriculum services delivered online. The work of professionals involved in mining, architecture and spatial industries has been transformed by the visualisation capability provided by digital content and new technology applications.
Through the March 2006 Digital Content Industry Action Agenda Report the digital content industry has established a vision to double its output to $42 billion by 2015. The report provides strategies to boost investment, build exports, extend industry-based training activity and link industry with research and development priorities. The industry will progress these strategies over the next 12–24 months. In parallel, a comprehensive Digital Content Strategy, designed to accelerate the production of digital content, is being progressed by the Australian Government.

She is correct in stating that 5 years ago the digital content industry was tiny.
This report is worth looking over though. Some of the graphics illustrate the miniscule access Australia had to the Internet until 2001; and how quickly Australia has moved onto the Internet with 71% of Internet connections currently using some form of broadband (figures 2 & 7)

Kim Weatherall, an Intellectual Property expert seems to answer this proud statement of a developing industry when she states:

And finally, this Bill fails the two basic tests the Attorney-General set himself when he started this process.  This bill does not give Australians the same rights that American consumers have.  And it does not ensure that consumers are treated like consumers and pirates like pirates. It treats everyone as pirates. Everyone from 14 year old wanna be stars, to Google, Apple, the creators of MySpace, YouTube or any other exciting new technology. Welcome to Australia, your own personal copyright nightmare. (from " Copyright Amendment Bill Amendments - comments")

and further,

As has been said: the next YouTube, MySpace, Blogger etc won't come from Australia, because there is no flexibility in our copyright laws, no breathing space. It should, of course, be pointed out that both YouTube, and MySpace have been sued in the US. But note that those lawsuits have come recently, after the proof of concept/momentum has been established. You might not get to that stage here in Australia. (from " Scenarios, Scenarios, Scenarios - applying the new copyright law to real life scenarios")

There were 130 submissions regarding the new copyright bill, but I didn't find Minister Coonan on the abbreviated list online. I cannot imagine that such a far-reaching bill would be passed without soliciting Minister Coonan's viewpoints.

Australian Copyright Law - SEO

SEO considerations in Reaction to the Cooper judgment and the new Australian Copyright Law

If the Cooper judgment requires that any link to copyrighted material is open to criminal and civil action without explicit permission, it is entirely possible that Google, Yahoo, and other search engines of all sizes will choose to use geo-positioning to effectively exclude Australia from the public Internet. Very simply, including Australia may not be worth the risk.

There may be some valid argument that the High Court of Australia has pre-empted the Australian Legislature by interpreting aspects of the new Copyright Law that were not in effect. Judicial activism is not uncommon in Australia, where courts can often be shown to have changed the word and spirit of the law in the course of judicial administration. Judicial discretion against the public interest, and the evident public weal, is one of the primary reasons for the deeply ingrained distrust of the law and courts in Australia; and is often seen as simply corruption.
How these issues will play out in the legislatures and courts is yet to be seen. What I want to examine here is some of the practical responses businesses may have available to them. Business must always take the attitude that it can manage, in the face of whatever changing circumstances.

Cooper, strictly interpreted
If the Cooper judgment from the High Court is strictly interpreted, no links can be made to copyrighted material, or to any webpage which contains a link to copyright-protected material. Not only will the website owner (Cooper) be held accountable, but the ISP (Comcen) will be held to be infringing copyrights. Both will be subject to repeated fines on an instance-by-instance basis - meaning each link will draw fines of either $1320.00 or $6600.00 aud on the spot - criminal prosecution, and then civil action supported by the criminal prosecutions.
In order to avoid these criminal and civil actions, the owner must obtain explicit permission for the link.
A fact that seems to have eluded so many commentators and experts is that all content on the Web is protected by copyright, either implicit or explicit. This issue has been held loosely on the Web in order to respect the free flow of information that was, and remains, the reason for the existence of the Internet.
The value of free speech and open access to information has been held more important than the protection of individual instances of creativity in order to energize the greater creative forces of many minds. This concept is expressed in the vast Open Source software libraries, the GNU public license, and the developing concepts of Creative Commons.

There may be two levels of exposure here, under Cooper:
1) where a page contains a link to copyright-protected material, the someone who wants to link to that resource must obtain permission from the owner of the resource (or webpage); then
2) the person who wants to link to the resource must obtain permission from the owner of the copyright-protected material itself - in order to protect themselves and the ISP who hosts their webpage or website.
These requirements are contrary to the free flow of information that caused the Internet to come into existence, stated simply.

Australian Copyright Law - Comments on LawFont

Comments on the LawFont site:

I'm amazed that with all the debate and the volume of verbiage about the new copyright laws, the most important aspects are so quickly overlooked.
First, we have to recognize that all content on the Internet - every webpage - contains an implicit copyright, even if there is no copyright notice.
Second, Cooper was not linking to music or lyrics which would be recognizable as copyright protected. He was linking to where this material could be found.
Cooper was linking to the sites where the infringements were intended, and that was seen as an infringement in itself.

If Google, or any webpage on any website, links to copyrighted material - any other webpage literally - in the eyes of the Cooper ruling, that is an infringement of copyright. This is the issue that has Google concerned.
In order to make this link, the High Court requires explicit permission.

And further, if that copyright-protected webpage (not website) has links to copyright protected material, then Google or any other webpage on any site no matter what the size, is infringing on copyright based on the Cooper ruling.
Every blog, webpage, MySpace, or YouTube entry may link to a webpage that links anywhere that contains a link to copyright-protected material is infringing exactly as the Cooper website did.

Google (and all search engines) index webpages by following links from one site to another. The software is called a 'spider.'
The sites that are found are analyzed based on their content, - indexed by "relevancy" - and added to the Google index. This is the source of the greater portion of the supplemental results of a keyword search.
If Google (and all search engines) must first obtain explicit permission from every site the spider finds leaves only a few choices. One, leave the webpage out of the index for Australians using geo-positioning; or 2) spend the time and money to obtain permission to index the site.
If the second option is chosen, then Google (and all other search engines) must examine the site to ensure that there are no copyright infringements, or links to copyrighted material - an immense additional cost.
Further, the owners of the webpage can change the content. As anyone who has worked to gain ranking via 'natural' search results will tell you, Google does not index every page on the Net instantaneously every day.

Google may be held responsible for constantly checking to ensure that none of the indexed webpages contain copyright-protected content, or links to copyright-protected content - which may initially appear irrational and unreasonable, but we are talking about the deepest pockets on the Internet and an opportunity to cash them out here.

So many of the commentators have asked questions concerning "public exposure". If Google and the other search engines deem the Cooper ruling to expose them to too great a risk for the reward, there may be no real public exposure to speak of. Remember, Australia is a largely undeveloped marketplace. There are no guaranteed rewards here. At this point, the Australian market will require a few more years of development to become profitable.

This is evidenced by the fact that both Google and Yahoo! only opened Australian ventures last year. Until then, Australia was part of the greater 'Oceania' market as it is for most of the search engines in the US, UK, and Europe.The Cooper ruling and the restrictive nature of the new copyright laws will only make Australia an increasingly unattractive market.

The Day Australia went Black

One day, Australia looked like just another part of the World Wide Web. Australians searching for products and services, or researching for school, could see any of the 70 million websites and hundreds of millions of webpages.
The next day, most searches on Google, Yahoo! and MSN returned nothing. Not a few pages, just ...Nothing.
As of January 1st, 2007, Australia became a blank hole in the Internet.

Slowly over the next few months, a few webpages appeared in the searches as webmasters, ISPs, and IT departments scrambled to craft permission statements acceptable to the new copyright laws. Each version had to be vetted with the Australian Attorney-General as they arrived.
Some sites and webpages appeared, then disappeared, as the wording of permission statements was fine tuned to comply with the new copyright laws.
Some websites were removed because the pages they submitted with permission statements contained links which were infringements under the new law. Google and Yahoo! wrote to the AG Philip Ruddock to ask for a grace period. There had been no reply for months. Finally, a reply from Philip Ruddock stated that this was a matter already ruled upon by the courts, and his office had to respect the independence of the magistracy.
The Attorney-General's reply further stated that the new copyright laws were due for a review in July 2008. Google, Yahoo! and other search engines were free to make submissions towards that review. Until then, the rulings of the High Court of Australia would stand.

The Attorney-General stated that a sample permission statement would be posted on the Government website for all to use. But as of that time, the Attorney-General nor any of the government offices, had given Google or Yahoo! permission to index their webpages. No one could access the sample permission statements.
In the strict interpretation of the High Court ruling, news media around Australia came to realize that to publish links in print was the same as to publish on the Net. The link to the sample permission statement could not be published in the newspapers.

Whole sections of newspapers disappeared. Editors and writers were fired, and new editors and writers who did not rely on the Net were hired.
Magazines were removed en masse from newsstands around the country. Any magazine with printed links, and especially those which came with game CDs or tutorials, were removed. The newsagents' stands contained only sparse newspapers and a few children's magazines.
Articles were published warning the public that to include links without permission in emails was to risk copyright infringement. The same articles warned that links included in SMS messages was being considered before the courts.

How had this been allowed to happen?
The answer that came back was breathtaking in its simplicity. It was broadcast on all the television news programs. A smiling official from the Attorney-General's office was seen saying: "It all came at a bad time. No one works on anything serious over the holidays."
Every Australian knew it was true. From mid-December til late January each year, Australia takes a holiday.
(This is, of course, a parody, and therefore protected under Australian copyright law. The sad part is, it could easily be true very soon. -PD)

Australian Copyright Law

I began writing about the changes in Australian Copyright Law on the Shortcut Computers blog, as part of an effort to promote a friend's website and help expose his company's skillset. His project seemed like a challenge since the service area for his small computer tech company was small - only a few suburbs on one side of Melbourne, Australia - and his services limited to supporting home and small office networking from the relatively-new broadband services.
Most of the strategies outlined in various books or by the tutorials described national or worldwide targets. I figured this limited target area would prove a good counterpoint project to explore the SEM market in Oz.
The writings ( parts 1, 2 and 3) were intended to explore how SEO and SEM project developers would have to adjust to the new marketplace defined by these laws. At first, it seemed like a tempest in a teapot.
When Google announced that these changes would "push Australia back into the pre-Internet era", the subject got interesting. This is Chinese curse-type interesting: "May you live in interesting times."

What's happening in Australia may be a harbringer of the future of the Internet.