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     Australian filesharing cases

This page considers selected Australian filesharing case law.

It covers -

• Sony Music v Uni of Tasmania (2003)
• MP3 WMA Land (2003)
• Cooper, MP3s4free.net and Com-cen (2005 and 2006)
• Universal Music v Sharman (2005)

Other cases are identified in the broader examination of Australian intellectual property case law here.

     Sony v Uni of Tasmania

2003 Sony Music Entertainment (Australia) Ltd v University of Tasmania - Federal Court decision on discovery application by record companies against three universities for alleged use of the universities' computer networks for reproduction and communication of MP3 files, infringing copyright in music and sound recordings. The companies sought access to university records to identify alleged infringers and to determine whether there are grounds to seek relief for infringement. The universities resisted on a number of grounds that included privacy. The Federal Court agreed to grant the orders on certain conditions, primarily regarding preservation of confidentiality and privilege. | FCA 532 (30 May 2003)

     MP3 WMA Land

Sydney students Tommy Le, Peter Tran and Charles Ng pleaded guilty after arrest in 2003 to supplying and distributing unlawful copies of copyrighted music via the MP3 WMA Land site. The Australian Federal Police alleged that the site resulted in potential music industry losses in excess of $60 million, with files on the site including several hundred commercially available albums and individual recordings, covers and music videos belonging to Universal Music, Sony, Warner, BMG, EMI and Festival Mushroom Records.
Le, Ng and Trau were each sentenced to 18 months imprisonment, suspended for three years on a $1,000 good behaviour bond. Tran was fined $5,000. Ng, who lacked Tran's medical certificate, was sentenced to 200 hours community service.

     Cooper and MP3s4free.net

In 2005 Stephen Cooper (MP3s4free.net) and Camperdown-based ISP E-Talk Communications (trading as ComCen Internet Services) were found guilty of copyright infringement by the Federal Court, having breached Australian law by creating hyperlinks to sites that had infringing sound recordings. The ruling by Justice Tamberlin in Universal Music Australia Pty Ltd v Cooper that ComCen was liable through hosting the MP3s4free.net website was the first decision of its kind in Australia.

The recording industry accused the ISP of being "directly involved in music piracy by allowing its infrastructure to be used for file-trading activities". ComCen unsuccessfully claimed it was not liable because it didn't host any MP3 recordings on their servers.

The court found that Cooper's mp3s4free.net hyperlinking did not communicate the works to the public (independent sites that he linked to were 'communicating' the works to the public), did not 'electronically transmit' the works to the public and did not 'make the works available online'. However, Cooper infringed copyright by making copies of sound recordings onto his hard drive, authorising the infringements of people who downloaded sound recordings using his hyperlinks, and authorising infringements done by remote sites. Disclaimers on the site were insufficient to provide a shield against copyright claims. The court found that the respondents engaged in misleading and deceptive conduct under section 52 of the Trade Practices Act by making false claims about legitimacy of the MP3 files available through the site and the rights of consumers to legally download the files.

The court ruled that Comcen, director Liam Francis Bal and technical officer Chris Takoushis

could have taken the step of taking down the website. Instead, they took no steps to prevent the acts of infringement.

and had financially benefited from advertising on the site. Although ComCen did not host the files, the evidence indicated that downloading could have "been switched off" if the respondents had wanted to do so, eg by disabling the hyperlinks. | FCA 972 (14 July 2005).

Tamberlin J's ruling was upheld by the Full Federal Court in December 2006, with Cooper and ISP E-Talk Cooper, being found guilty of authorising copyright infringement.

     Universal Music Australia v Sharman License Holdings

In September 2005 Justice Wilcox of the Federal Court ruled that Sharman Networks, the Australian company behind Kazaa, had breached music copyright by authorising its users to swap songs illegally and had exhorted users to "Join the Revolution", encouraging "visitors to think it 'cool' to defy the record companies by ignoring copyright constraints".

Sharman was ordered to modify Kazaa so that users can access only licensed music files and to pay most of the legal costs. A spokesman for the 30 record companies that sued Sharman indicated that they would seek damages.

Wilcox found that Sharman and Brilliant Digital Entertainment had acted in "common design" and allowed Kazaa users to infringe copyright.

The court indicated that a total stop to online music piracy might not be possible and - given the importance of "freedom of speech and communication" - was anxious that any orders did not shut down legitimate file sharing of "licensed music, photographs and recipes". Sharman was ordered to fit Kazaa with one of two filter technologies (one stopping users from sharing files that match a list provided by record companies, the other showing only licensed works) and to put "maximum pressure" on current users to upgrade to the filtered version. | FCA 1242 (5 September 2005)







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