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Oz ISP, employee and principal held liable for copyright breaches

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Analysis Another day another copyright battle! Australia’s Federal Court has handed down its decision in Universal Music Australia v Cooper (the ComCen case). While no final orders has been made, Justice Brian Tamberlin found for the recording industry applicants on all counts, in what has been described by the recording industry as a “major blow against piracy".

Following an investigation by Music Industry Piracy Investigations (MIPI) into the website www.mp3s4free.net, Universal Music Australia and 30 other companies, including seven international companies, commenced proceedings against the alleged registrant of the mp3s4free.net domain name, Mr Stephen Cooper, and the internet service provider (ISP), E-Talk Communications (trading as ComCen Internet Services). Proceedings were also commenced against an employee and principal of ComCen.

MIPI proclaimed that this case was “a world first”, being an action not only against an MP3 website, but also against an ISP which provided website access to users, thereby allowing them download unauthorised sound recordings from the site. According to MIPI, “the website (was)... one of the largest of its kind ... in the year preceding the commencement of legal proceedings, approximately seven million people visited the website, resulting in over 100 million hits to the website".

The case is significant because it was the first time the recording industry had accused an ISP of direct involvement in music piracy by allowing its infrastructure to be used for file-trading activities. ComCen unsuccessfully claimed that it was not liable for any copyright infringements because it didn’t host any MP3 recordings on their servers. Further, it claimed that it was not aware of any infringing behaviour associated with the mp3s4free.net website, and was in no position to control the behaviour of their subscribers. The judge rejected these claims.

The court accepted MIPI’s claims that Cooper’s website provided hyperlinks to external websites, which allowed individuals to engage in the unauthorised downloading of sound recordings. The court held that Cooper had “permitted or approved” and thereby authorized the copyright infringement by internet users who accessed the mp3s4free.net website. The court also found that the respondents engaged in misleading and deceptive conduct under section 52 the Trade Practices Act by making false claims about the legitimacy of the MP3 files available through the website, and the rights of consumers to legally download the files.

The website was “user friendly and attractive” and “visitors could readily select from a variety of catalogues of popular sound recordings for download.” The website used an extract from the ARIA charts to demonstrate that many of the latest hit singles were available to users.

Peer to peer, or peerless?

This decision may not necessarily affect the Australian peer to peer cases currently going forward including the Kazaa case, where the parties are awaiting a judement, and the Swiftel (Perth) ISP BitTorrent case, which will be heard later in 2005. In the ComCen case users could download from a centralised server. Although the respondents didn’t host the files, the evidence indicated that these downloads could have been switched off by the respondents if they had wanted to do so. The hyperlinks could have simply been disabled. However, Kazaa, BitTorrent and other P2P systems can’t be simply turned off. There is no overriding master switch. They are decentralised systems. There simply isn’t the same level of centralised control as exists with sites like mp3s4free.

The court held that in the ComCen case, Mr Cooper had "sufficient control of his own website to take steps to prevent the infringement". Another point of difference is that Mp3s4free apparently existed for one reason only – to allow consumers to download music for free of charge and free of restrictions. While infringement is a substantial problem on P2P networks let’s not forget that there are many legitimate uses of P2P networks. P2P networks are used to trade public domain content, licensed content like music and films in return for the payment of a fee, or free the personal content, like blogs and other private writing.

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