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.