Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

The Court held that Mr Cooper, as the website operator, and E-Talk Communications Pty Limited (host ISP) and its director Mr Bal authorized copyright infringement by structuring, operating, and benefiting from a website whose principal purpose was to enable and facilitate infringing downloading of sound recordings. Their conduct met the relevant test for authorization under s 101(1) and (1A) of the Copyright Act 1968 (Cth): they had power to prevent the acts, established relevant relationships with users, failed to take reasonable steps to prevent infringement, and engaged in more than mere provision of facilities. The statutory defense in s 112E did not apply as their actions went beyond...

Parties
Appellant: Stephen Cooper; Respondent: Universal Music Australia Pty Ltd; Respondent: EMI Music Australia Pty Limited; Respondent: Sony Music Entertainment (Australia) Limited; Respondent: Warner Music Australia Pty Limited; Respondent: BMG Australia Limited; Respondent: Festival Records Pty Ltd and Mushroom Records Pty Ltd trading as Festival Mushroom Records; Appellant/respondent: E-Talk Communications Pty Limited trading as Comcen Internet Services; Respondent: Com-Cen Pty Ltd (Subject to Deed of Company Arrangement); Appellant/respondent: Liam Francis Bal; Appellant/respondent: Chris Takoushis; Respondents: The parties listed in the annexure; Respondents: Additional Respondents (as per Annexure: Shady Records, Inc; UMG Recordings, Inc; Aftermath Records; etc.)
Jurisdiction
Australia
Judgment Date
18 December 2006
Procedural Posture
Appellate / Judgment on Appeals From a Single Judge of the Federal Court of Australia
Outcome
Appeals by Mr Cooper, E-Talk, and Mr Bal dismissed (with minor amendment to orders to expressly confine to acts/infringement in Australia). Appeal by Mr Takoushis allowed (orders against him set aside/varied). Costs awarded accordingly.
Legal Topics
Copyright, Authorization of Infringement, Online Copyright Infringement, Liability of Isps and Employees, Joint Tortfeasance
Intellectual Property Copyright Authorization of Infringement Online Copyright Infringement Liability of Isps and Employees Joint Tortfeasance

Case Brief

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Parties

Stephen Cooper

Appellant

Universal Music Australia Pty Ltd

Respondent

EMI Music Australia Pty Limited

Respondent

Sony Music Entertainment (Australia) Limited

Respondent

Warner Music Australia Pty Limited

Respondent

BMG Australia Limited

Respondent

Festival Records Pty Ltd and Mushroom Records Pty Ltd trading as Festival Mushroom Records

Respondent

E-Talk Communications Pty Limited trading as Comcen Internet Services

Appellant/respondent

Com-Cen Pty Ltd (Subject to Deed of Company Arrangement)

Respondent

Liam Francis Bal

Appellant/respondent

Chris Takoushis

Appellant/respondent

The parties listed in the annexure

Respondents

Additional Respondents (as per Annexure: Shady Records, Inc; UMG Recordings, Inc; Aftermath Records; etc.)

Respondents

Procedural Posture

Appellate / Judgment on Appeals From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether providing hyperlinks on a website constitutes authorization of copyright infringement under the Copyright Act 1968 (Cth)
  2. 2 Whether internet service providers and their directors/employees can be liable for authorization of copyright infringement for hosting and supporting such a website
  3. 3 Proper construction and application of s 101(1), 101(1A), and s 112E of the Copyright Act 1968 (Cth)

Ratio Decidendi

The Court held that Mr Cooper, as the website operator, and E-Talk Communications Pty Limited (host ISP) and its director Mr Bal authorized copyright infringement by structuring, operating, and benefiting from a website whose principal purpose was to enable and facilitate infringing downloading of sound recordings. Their conduct met the relevant test for authorization under s 101(1) and (1A) of the Copyright Act 1968 (Cth): they had power to prevent the acts, established relevant relationships with users, failed to take reasonable steps to prevent infringement, and engaged in more than mere provision of facilities. The statutory defense in s 112E did not apply as their actions went beyond...

Court Disposition

Appeals by Mr Cooper, E-Talk, and Mr Bal dismissed (with minor amendment to orders to expressly confine to acts/infringement in Australia). Appeal by Mr Takoushis allowed (orders against him set aside/varied). Costs awarded accordingly.

Orders

  • Appeals by Mr Cooper, E-Talk, and Mr Bal dismissed subject to amending declaratory and restraining orders to include words 'in Australia'.
  • Appeal by Mr Takoushis allowed. Orders below varied to remove or alter declaratory/restraint/costs orders as against him.