It is thought to be the first time that an ISP has been found
liable for copyright infringement by allowing its infrastructure to
be used for linking to music files.
ComCen Internet Services, a trading name of E-talk
Communications, began hosting Cooper’s website, mp3s4free.net, in
December 2000. The site was one of the largest of its type, with
links to thousands of unauthorised music recordings stored on other
computers.
This was not a peer-to-peer service like Kazza or Grokster. But
users could download songs for free from other computers by
visiting the links, or they could let mp3s4free.net know that they
had or knew of available MP3 files by posting links to the host
servers.
In March 2001, Cooper contacted ComCen to see if the firm was
willing to host mp3s4free.net for free in return for advertising on
the site. ComCen agreed.
However, in late 2002, the site came under investigation by the
Australian Music Industry Piracy Investigations and in October
2003, six major Australian record labels sued Cooper, ComCen,
ComCen employee Chris Takoushis, E-Talk, and Liam Bal, a director
of both E-Talk and ComCen.
Justice Brian Tamberlin, issued his ruling last week, finding
them all liable for copyright infringement.
Cooper had not infringed copyright by communicating the
recordings to the public, said the judge, but he was responsible
for authorising an act that infringes copyright, and therefore he
was also liable for copyright infringement.
“The web site is clearly designed to, and does, facilitate and
enable this infringing downloading,” wrote the judge. “I am of the
view that there is a reasonable inference available that Cooper,
who sought advice as to the establishment and operation of his web
site, knowingly permitted or approved the use of his web site in
this manner and designed and organised it to achieve this
result.”
"Cooper has permitted or approved, and thereby authorised, the
copyright infringement by internet users who access his web site
and also by the owners or operators of the remote web sites from
which the infringing recordings were downloaded," he added.
Turning to ComCen and E-Talk, the judge found that they were
“responsible for hosting the web site and providing the necessary
connection to the internet and therefore had the power to prevent
the doing of the infringing acts. They could have taken the step of
taking down the web site. Instead, they took no steps to prevent
the acts of infringement."
Takoushis and Bal were also found liable because they were aware
of the content of the website, but took no action to prevent the
unlawful activity.
Finally the court considered the effect of a free trade
agreement signed between Australia and the US, which introduced a
“safe harbour scheme” into Australian law, giving ISPs some
protection from copyright actions. This came into effect on 1st
January, but was found not to apply retrospectively.
Nor would it have applied in any case, said Justice Tamberlin,
as ComCen would have had to show that it implemented a policy of
terminating the accounts of copyright infringers and in this case,
while it was aware of the likelihood of copyright infringement
taking place, the ISP had done nothing to prevent it.
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