EdSonic Pty Ltd v Cassidy (No 2) - [2011] FCA 577

FEDERAL COURT OF AUSTRALIA
EdSonic Pty Ltd v Cassidy (No 2) [2011] FCA 577

Citation: EdSonic Pty Ltd v Cassidy (No 2) [2011] FCA 577

Parties: EDSONIC PTY LTD (ACN 094 797 010) v BARBARA CASSIDY; BARBARA CASSIDYv EDSONIC PTY LTD (ACN 094 797 010), EDSONIC AUSTRALIA PTY LTD (ACN 101 545 206) and ROBIN LICK

File number: NSD 517 of 2009

Judges: MOORE J

Date of judgment: 31 May 2011

Catchwords: COPYRIGHT – assessment of damages – principles applicable

Legislation: Copyright Act 1968 (Cth) s115

Cases cited: General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197
Larrikin Music Publishing Pty Ltd (ACN 003 839 432) v EMI Songs Australia Pty Ltd (ACN 000 063 267) (No 2) (2010) 270 ALR 481
TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 239 ALR 117

Date of hearing: 2 May 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant The Applicant did not appear

Counsel for the Respondent: S P Brennan (Pro Bono)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 517 of 2009

BETWEEN:
EDSONIC PTY LTD (ACN 094 797 010)
Applicant

BARBARA CASSIDY
Cross-Claimant

AND:
BARBARA CASSIDY
Respondent

EDSONIC PTY LTD (ACN 094 797 010)
First Cross-Respondent

EDSONIC AUSTRALIA PTY LTD (ACN 101 545 206)
Second Cross-Respondent

ROBIN LICK
Third Cross-Respondent

JUDGE:

MOORE J

DATE OF ORDER:

31 MAY 2011

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1.The cross-claimant, Barbara Molly Cassidy is the owner of an amount of $16,193.68 plus any interest being undisputed allocations received by Copyright Agency Limited on behalf of the first and second cross-respondents as referred to in the letter from Copyright Agency Limited to Cassidy dated 17 February 2011.
2.The cross-claimant, Barbara Molly Cassidy is the owner of an amount of $21,194.74 plus any interest, being allocations in suspense received by Copyright Agency Limited on behalf of the first and second cross-respondents, as referred to in the letter from Copyright Agency Limited to Cassidy dated 17 February 2011.

THE COURT ORDERS THAT:
3.The cross-respondents to pay the amount of $165,000.00 to the cross-claimant on or before 24 July 2011 plus interest in accordance with Order 35 Rule 8 of the Federal Court Rules.
4.The cross-respondents pay the cross-claimants the costs of the proceedings on and from 12 November 2010.
5.Leave be given to continue these proceedings against the third cross-respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 517 of 2009

BETWEEN:
EDSONIC PTY LTD (ACN 094 797 010)
Applicant

BARBARA CASSIDY
Cross-Claimant

AND:
BARBARA CASSIDY
Respondent

EDSONIC PTY LTD (ACN 094 797 010)
First Cross-Respondent

EDSONIC AUSTRALIA PTY LTD (ACN 101 545 206)
Second Cross-Respondent

ROBIN LICK
Third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 577
Decision Date: 31 May 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of EdSonic Pty Ltd v Cassidy (No 2) involved a dispute over copyright infringement. EdSonic Pty Ltd, the cross-claimant, alleged that the respondents, Cassidy and others, had infringed its copyright in music compositions by reproducing and distributing them without authorisation. The court was required to determine the extent of the infringement and the appropriate damages payable by the respondents to EdSonic.

The legal issues before the court included the assessment of damages for the copyright infringement, specifically focusing on the principles applicable to determining the quantum of damages. The court had to consider whether the damages awarded should be based on actual loss suffered by EdSonic or on a reasonable licence fee that could have been charged for the use of the music compositions. The court also needed to decide on the appropriate method for calculating the damages, considering the nature of the infringement and the potential loss suffered by the copyright holder.

The court found that the respondents had indeed infringed EdSonic’s copyright and determined the amount of damages payable. It concluded that the appropriate approach was to calculate damages based on the licence fee that could have been reasonably charged for the use of the music compositions. The court applied established principles in copyright law to arrive at the figure of $165,000.00 as the appropriate damages. Additionally, the court ordered the respondents to pay the cross-claimant’s costs from a specified date and granted leave to continue the proceedings against a third party.

Orders

Orders of the court

3. The cross-respondents to pay the amount of $165,000.00 to the cross-claimant on or before 24 July 2011 plus interest in accordance with Order 35 Rule 8 of the Federal Court Rules.

4. The cross-respondents pay the cross-claimants the costs of the proceedings on and from 12 November 2010.

5. Leave be given to continue these proceedings against the third cross-respondent.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		EdSonic Pty Ltd v Cassidy (No 2) [2011] FCA 577
Parties:		EDSONIC PTY LTD (ACN 094 797 010) v BARBARA CASSIDY; BARBARA CASSIDYv EDSONIC PTY LTD (ACN 094 797 010), EDSONIC AUSTRALIA PTY LTD (ACN 101 545 206) and ROBIN LICK
File number:		NSD 517 of 2009
Judges:		MOORE J
Date of judgment:		31 May 2011
Catchwords:		COPYRIGHT – assessment of damages – principles applicable
Legislation:		Copyright Act 1968 (Cth) s115
Cases cited:		General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197 Larrikin Music Publishing Pty Ltd (ACN 003 839 432) v EMI Songs Australia Pty Ltd (ACN 000 063 267) (No 2) (2010) 270 ALR 481 TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 239 ALR 117
Date of hearing:	2 May 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Applicant	The Applicant did not appear
Counsel for the Respondent:	S P Brennan (Pro Bono)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 517 of 2009

JUDGE:	MOORE J
DATE OF ORDER:	31 MAY 2011
WHERE MADE:	SYDNEY