Providing Indirect Access to Files May be an Infringement of Copyright

by Matthew Smith

A recent decision of the Federal Court is illustrative of the consequences for both owners and internet service providers of web sites which provide links to other web sites from which music files can be downloaded by the public.

Most observers are keenly awaiting the outcome of the Federal Court in the ‘Kazaa’ file sharing network. However, another case of significance in this area, Universal Music Australia Pty Ltd v Cooper [2005] FCA 972, has recently been decided. In this case a number of prominent Australian record companies brought proceedings against both the owner of a web site promoting downloading of music files (mp3s) and the directors of the internet service provider (ISP) which hosted the web site.

The plaintiffs alleged direct and secondary infringement of copyright and breaches of the Trade Practices Act. The owners of the copyright argued that they had an exclusive right to copy and to communicate the sound recordings and that Cooper had infringed the copyright by making copies of the recordings.

Tamberlin J held that Cooper had infringed copyright because a number of unauthorised music files were found on his computer during the execution of an Anton Piller order. The court found that Cooper had copied the files without authorisation although it was not suggested that the public could access those files directly from Cooper’s computer.

The plaintiffs also argued that by owning a web site with links to remote web sites from which MP3 files could be downloaded, Cooper had ‘electronically transmitted’ recordings in breach of the Act. The Court did not agree and found that the transmission of a recording occurs when the files are downloaded from the remote website.

The Court then considered whether Cooper had authorised the infringement of copyright. Whilst the Cooper web site included a disclaimer indicating that downloading mp3s could be illegal, the court found that the disclaimers did not amount to ‘reasonable steps to prevent or avoid the breach of copyright’.

The Court thought Cooper should have tried to ascertain the legality of the MP3 files available on the remote web sites. The Court also went on to find that the directors of the ISP that hosted Cooper’s web site had authorised the infringing “communication” of mp3s to the public from the remote websites.

The case is illustrative of the risks for both web site owners and ISP providers who provide access to unauthorised music files on the internet, either directly or indirectly.


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