Judge: MP3 site, ISP breached copyright

It took almost two years but major record labels in Australia have finally won a legal battle against a Queensland man and his Internet Service Provider for alleged music piracy.

Stephen Cooper, operator of a Web site called MP3s4free.net, was found guilty of copyright infringement by Federal Court Justice Brian Tamberlin.

Although Cooper didn't host pirated recordings per se, the court found he breached the law by creating hyperlinks to sites that had infringing sound recordings.

This is the first such judgement against hyperlinking in Australia.

Tamberlin found against all other respondents in the case, namely ISP Comcen, its employee Chris Takoushis, Comcen's parent company E-Talk Communications, and its director Liam Bal.

In October 2003, the record companies, which included Universal Music, Sony, Warner and EMI, alleged that Cooper cooperated with Bal and Takoushis to increase traffic to the ISP, and boost advertising revenue.

Subsequently, the court was told Cooper was unaware he may have infringed copyright law, while E-Talk and Comcen argued they didn't know of Cooper's actions.

In handing down his judgement today, Tamberlin said: "I am satisfied there has been infringement of copyright.

"I won't make formal orders as yet. But since there's been infringements ... the respondents must pay the applicants' costs."

Outside the Sydney court, Music Industry Piracy Investigations general manager Michael Kerin said the verdict sent a strong message to ISPs.

"This is a very significant blow in the war against piracy.

"The court has found against all the respondents. It sends the message that ISPs who involve themselves in copyright infringement can be found guilty.

"The verdict showed that employees of ISPs who engage in piracy can be seen in the eyes of the court as guilty," Kerin said.

Cooper was not present in court. His legal counsel, Bev Stevens, said the verdict was "extremely disappointing".

The parties will only be required to pay costs -- which will be decided in 14 days once the music industry serves short minutes of orders in reponse to the judgement.

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Talkback 61 comments

    When will they start a case ag ...Anonymous -- 14/07/05

    When will they start a case against google? or Yahoo ? i can find hyperlinks there to 'illigal' content like millions of others ....

    It is a significant victory in ...Anonymous -- 14/07/05

    It is a significant victory in the war against sanity.

    this judge is an idiot and cle ...Anonymous -- 15/07/05

    this judge is an idiot and clearly shows no understanding at all.

    "In handing down his judgement today, Tamberlin said: "I am satisfied there has been infringement of copyright."

    how can u infringe copyright by putting a link to it ? better close down the libraries, they have indexes that have links to copyrighted books.

    Absolutely absurd - unless thi ...Anonymous -- 15/07/05

    Absolutely absurd - unless this story is withholding major details about the case, this shows an utter lack of understanding about the nature of the internet. For shame, Australia, for shame...

    When will the makers of his co ...Anonymous -- 15/07/05

    When will the makers of his computer (Dell maybe) on which he created the web page be charged? How about the makers of the wire for the phone/DSL line or if cable, the manufacturers of the cable that transmitted the web page to the server that hosted the illegal links. If he uses a modem to connect to his ISP the phone company should also be charged, they should have disconnected him, as they should have known he was transmitting links to copyrighted material. All of these providers are necessary to facilitate the infringement. Hey, actually the doctor who delivered him should also be charged, mother, father, teachers, any site that showed him how to make a web page . . .

    This is about the most ludicrous ruling ever, if we follow this through to logical conclusion.

    Working for a large ISP, this ...Anonymous -- 15/07/05

    Working for a large ISP, this has huge effects on how the industry will see this. We run the hosting for tens of thousands of customers, and it is not our business to filter every single persons site to make sure it complies with copyright laws. The interesting part, is that as no illegal material was on the site in question, how was the ISP reasonably able to identify illegal material that was not present on any of their systems?

    This sets a dangerous precident, and should be reinvestigated with proper technical advise!

    The fact that copyrighted mate ...Anonymous -- 15/07/05

    The fact that copyrighted material was offered for download does not in and of itself constitute evidence of copyright infringement. It is entirely possible that someone might have obtained permission through some channel outside of the Internet to copy the material in question. {For example, following a drunken conversation I had with the band Ocean Colour Scene some years ago, I have permission to make copies of some of their work for personal use.}

    As long as the actual download site did not actively seek to mislead anyone into believing they already had a right to download material, there should be no case. Ignorance of the law is no defence. Of course, a big "The recording and playback of certain copyrighted material may require permission which is not ours to give. If in doubt, please check with the copyright holder" or something to that effect never hurts.

    So how come we aren't taking d ...Anonymous -- 15/07/05

    So how come we aren't taking down ANY infrastructure comapny that facilitates illegal activities? When mafia bosses talk on the phone, how come we don't take down SBC or Verizon? They facilitated the call, right? This is proof that courts, judges and the general populace are still completely CLUELESS on ISPs and internet technology. CLUELESS.

    Judge has no clue about techno ...Anonymous -- 15/07/05

    Judge has no clue about technology. I wrote an article on just this kind of legal cluelessness 5 yrs ago in http://www.idrop.com/Notes/HistoryRepeats.asp

    This is horribly ignorant of t ...Anonymous -- 15/07/05

    This is horribly ignorant of the judge. I hope there ends up being an appeal to this as that just isn't right. Do they not realise that any hyperlink could theoretically lead to copyrighted content? What if I link to google.com on my website, and the google servers get compromised and filled with illegal content? It sounds like this judge would blame google (which may be possible, if they were found to be negligent with security) and then mark me guilty for linking to this content. I wonder if the guy who compromised the servers would even be blamed for anything...

    How embarrassing for Australia ...Anonymous -- 15/07/05

    How embarrassing for Australia, I mean come on? Copyright infringement occurred when the guilty parties ripped their tunes off their discs and MADE THEM AVAILABLE for unauthorized distribution. To claim a website owner who lists links to the infringed works, and even worse his ISP are guilty of the infringement just shows a complete ignorance of the internet and it's "open" nature. The court MUST have included the ISP and website owner where the actual files are? Does that mean I am now a pimp becuase I told you you can find hookers down by the doc? Can I sue the phone company for being an arms dealer because they don't have a permit to sell weapons, but they list the phone numbers of people who do? Put down the shrimp, step away from the barby and get a clue!

    Total crap. If I say/post some ...Anonymous -- 15/07/05

    Total crap. If I say/post someone where he may go and listen music for free, e.g. stand near the concert hall, am I committing a crime? And MP3 quality is not 100 proc. the same as original, let's assume it's a good quality preview. Returning back, telling someone where one might get things, is not a crime itself, until the thief goes and takes it. Following the logic, if ISP is guilty, the telcom by whose wires it was transferred is guilty as well, as well as MS, whose software was probably used to commit the crime... continue yourself. If that's a crime, then all GSM companies are guilty, because many criminals agree on their deeds on the phone, and car makers as well, if transport was used in the criminal act... :) But what you could expect of cangaroo judge :P

    people get lamer every day, ho ...Anonymous -- 15/07/05

    people get lamer every day, hosting links is illegal is it? my website must me evil then because i have links to other sites. (address not givin because i dont want to be sued by the RIAA, the judge, and all the MORONS who desided he was guilty. SUE ME FOR WRITTING FEED BACK! Im a teen yet im smarter and have better judgement then them. Wolf Out!

    In October 2003, the record co ...Anonymous -- 15/07/05

    In October 2003, the record companies, which included Universal Music, Sony, Warner and EMI, alleged that Cooper cooperated with Bal and Takoushis to increase traffic to the ISP, and aide (aid) advertising revenue.
    Subsequently, the court was told Cooper was unaware he may (might) have infringed copyright law, while E-Talk and Comcen argued they didn't know of Cooper's actions.
    In handing down his judgement today, Tamberlin said: "I am satisfied there has been infringement of copyright.
    "I won't make formal orders as yet. But since there's (there have) been infringments ...the respondents must pay the applicants' costs."

    Is it no longer necessary to be literate in order to become a professional journalist? The writer's two errors are quite basic. Perhaps Australian judges need not be literate, but quoted errors should be indicated with sic, too.

    Yet another moronic judgement ...Anonymous -- 15/07/05

    Yet another moronic judgement from an out-of-touch judiciary. ISPs guilty because they hosted hyperlinks - I simply can't believe it. This fool has no idea of the effect this will have on ISPs worldwide ( until his useless ruling is overturned in the name of sanity )

    This is absolutely ridiculous. ...Anonymous -- 15/07/05

    This is absolutely ridiculous. When will the lawsuits against Google or Yahoo! start?

    WHAT? YOU ARE KIDDING! This ...Anonymous -- 15/07/05

    WHAT? YOU ARE KIDDING! This guy's website is no different from Google or yahoo, or ANY SITE.

    I lost all respect for Australian judges.

    While the federal court hasn't ...Anonymous -- 15/07/05

    While the federal court hasn't yet published its ruling, this precedent has a bigger impact that anyone has imagined.

    The precedent here is that you could be breaking australian law just by linking to a site.

    While their are clear examples such as linking to sites which break australian law, other websites could argue that a link to a picture on their site is breaching copyright as you are using the picture out of context and without permission.

    There are other examples I could think of, but I really don't think the decision has been throught through.

    Tamerblin is not an idiot. He' ...Anonymous -- 15/07/05

    Tamerblin is not an idiot. He's old but sharp, and understands the issues involved. Stephen Cooper created a webpage that linked to MP3s which he knew were illegal, and attempted to make money off the site by putting up ads. A guilty verdict against him is the same as the recent guilty verdict against Grokster and StreamCast. Hyperlinking is not illegal, facilitating copyright infringement is...especially to turn a profit.

    As for ComCen and its employee, I'm surprised this verdict came down against them. When I was covering the case a few years ago I thought there was no chance they'd get found guilty. The big question that hasn't been answered by ZDNet Australia (or anyone else, to be fair) is whether Judge Tamberlin accepted that ComCen and Chris Takoushis didn't know the site facilitated copyright infringement, or whether MIPI provided enough evidence that they had knowingly cooperated to increase traffic to the ISP by facilitating copyright infringement.

    I expect a deep analysis of the judgement in due course...

    Appeal Appeal Appeal. WHAT A T ...Anonymous -- 15/07/05

    Appeal Appeal Appeal. WHAT A TOOL!!! This obviously needs a media spotlight!!!!

    Calling Tamerblin an idiot mig ...Anonymous -- 15/07/05

    Calling Tamerblin an idiot might be going too far, but saying he is dangerously naive of what this decision will bring is not. I run several websites, and ALL of them depend on advertising revenue to survive. I also have literally thousands of hyperlinks to other sites throughout those sites, which at the time of creating the link had relevant, and to the best of my knowledge legal content. Am I then liable if these sites choose to then host illegal content? How is it possible that I can be held liable for OTHER peoples actions?

    This decision seems to me to set a precedent that all you have to do to prove infringement is that the accused was knowledgeable of this. This is a massive grey area, as the entertainment industry has proved it has VERY deep pockets for this, and I'm sure a team of crack lawyers can be very convincing. Then again, why should anyone be worried, this just proves yet again that we have the best judicial system money can buy!

    When I read this I thought &qu ...Anonymous -- 15/07/05

    When I read this I thought "What crap!" but then I read some of the opinions posted here. Of couse, most people think the decision is stupid and they're probably right. But are we looking at the whole picture?

    Johnny Bongo asked an interesting question in an earlier post. He asked "Does that mean I am now a pimp becuase I told you you can find hookers down by the doc?". The answer is, of couse, no but is that what really happened here?

    The accused set up a site that deliberately linked to copyrighted material in order to make a profit from advertising. So while you might not be a pimp for pointing out the docks, what if you set up a business that did? What if you opened a shop front and called it "Get Hookers Here"? What if that business was paid for by selling advertising space on the walls inside the shop?

    Are you a pimp now? Maybe not but you're certainly making money through prostitution aren't you?

    I think your article misstates ...Anonymous -- 15/07/05

    I think your article misstates the judgment.

    In fact the record companies were unsuccessful in their claim that hyperlinking to sites that had infringing recordings was communicating copyright material to the public.

    What the record companies were successful in claiming was that Cooper authorised the infringements of people who downloaded sound recordings using his hyperlinks.

    It's an important difference, otherwise every hyperlink from a search engine could have been an infringement!

    The article misrepresents the ...Anonymous -- 15/07/05

    The article misrepresents the facts of the trial.

    The judgement had some negative outcomes for the recording industry. It affirmed several key protections afforded to individuals and internet service providers.

    It confirmed that a hyperlink to illegal material is NOT a breach in itself as the source of the hyperlink does not directly SERVE the illegal material to the client.

    It is clear the writer has not read the judgement.

    We're all living in a damned G ...Anonymous -- 15/07/05

    We're all living in a damned George Orwell novel and no one is telling us..

    The most annoying thing about ...Anonymous -- 16/07/05

    The most annoying thing about this case since day one, is that what is always printed is what the music companies want printed.. C'mon journos. For once print the correct verdict and not the one dictated by Ex-Speck and his cronies.. 4 out of the 5 allegations were dismissed. Not exactly a convincing win after all.

    Those that were not a part of ...Anonymous -- 16/07/05

    Those that were not a part of the case and who are judging this man should keep their opinions to themselves - as previously stated there has been a misrepresentation of the facts and the journalists have omitted to mention that 5 of the 6 charges were dropped - I again state not a very convincing win at all!!!

    Instead of having a go at peop ...Anonymous -- 18/07/05

    Instead of having a go at people posting their opions based on what is written in the article, perhaps direct your comments to the author of the article who , if you're correct seems to have grossly misrepresented the findings of the court. With what was written in the article, peoples reactions are VERY understandable.

    Dear Cow, I was in fact direct ...Anonymous -- 19/07/05

    Dear Cow, I was in fact directing my comments to anyone who got the facts wrong including the author of the article - but what astonishes me is if you are a cow - how do you read and type - wow you must earn your owner heaps - more than what any MP3s would be worth!!!

    Time to end, or at least sever ...Anonymous -- 22/07/05

    Time to end, or at least severely restrict the use off copyrights and patents laws!
    The latest technology makes copyright a thing of the past. Sure the producers of a product ( music, film etc) have an entitlement for a reward, but only ones. After all most of get only paid once for the product or service that we produce in our daily work.

    And along came encrypted P2P's/Torrents peterjames -- 22/10/05

    When will the music & film industry realise they are fighting a loosing battle?

    think of this if Microsoft windows cost $50 and if you thought if you got caught you could get in big trouble massive fines etc, you would think "what the hell its only $50" but when it costs more than most students/low income families can afford (the majority of this planet) then piracy will be rife because people will risk it. Over 90% of software in china is pirated if they only reduced their prices instead of 30% of people world wide owning legitimate software, you would get 80% and that $50 would bring far more money because they would be selling far more software. And im sure its going to be a hell of alot easier to put pressure on 20% than 70% to get legitimate software. Yeah sure you will get companies like BMW in Australia who get fined for software piracy but by lowering prices this will raise profits and reduce piracy it’s a wining situation for both sides. ¿Comprenda?

    Software companies/Film makers/music industry, waste all the money you want but really your only effecting the people that couldn’t probably afford your product any rate. So its absolutely useless, but i wonder how many morons your going to have to hire to eventually figure this out.

    stop wasting money and look at a medium, sell everything online just make it a reasonable price look at UK with record number of online mp3 sales. Most people by default want to buy legitimate software/music/movies you're just going to have to re-evaluate how much you’re selling them for. Look at it from the public's prospective they dont see eminem, metallic etc struggling for cash and most new talent get ripped off from the industry whilst they make a name for themselves.

    Piracy protection is always 4 steps behind the exploits and if they think about creating software/hardware restrictions you look how popular competitors products will become ones without these restrictions.. Where there is demand someone will create the product, they just have to stop being greedy and come to a medium because just incase they dont know it yet they are fighting a loosing battle how many ipods were sold this year?.

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    Under the US thumb Anonymous -- 28/08/06

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    Royalties Stephen Webster -- 30/11/07

    I believe it is royalties that should be eliminated. They are borderline criminal and on a par with protection money, interest, and insurance payments. Sales revenue should suffice for recordings, and then copyright infringement due to not paying a royalty wouldn't be an issue.

    royalty plus Stephen Webster -- 30/11/07

    When referring to royalties I was not meaning the few cents artists gain from a sale; that too is criminal, but another matter. When it comes to file sharing, the makers of blank recording media have already paid royalties for us, and then pass the charges onto us, so everything we obtain is thus paid for. The time spent in obtaining all those files can also rob us of our time and energies. Note:

    To compensate copyright holders for the copying that was expected to ensue, the [US] statute provides that manufacturers and distributors of digital audio recording devices and blank digital tapes pay a percentage-based royalty to the Copyright Office to be pooled and shared among artists, music publishers, and record companies.
    - Michelle L Spaulding 1999

    Charge for illegal activity? Stephen Webster -- 30/11/07

    On that note, how can they charge for an "illegal activity which MAY occur"? They can't charge for something illegal, therefore file sharing and transferring to recording media must be legal. If they claim it is, then its also entrapment and incitement to commit a "crime".

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