Universal Music Australia Pty Ltd v Cooper

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FEDERAL COURT OF AUSTRALIA

Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878

Trade Practices Act 1974 (Cth)

Universal Music Australia Pty Limited v Cooper (2005) 65 IPR 409 referred to
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to
Microsoft Corporation v TYN Electronics Pty Limited (in liq) (2004) 63 IPR 137 cited
Microsoft Corporation v Goodview Electronics Pty Limited (2000] 49 IPR 578 cited
Australasian Performing Rights Association Limited v Pashalidis Leaders (2000) 48 IPR 610 cited
Microsoft Corporation v Blanch (2002) AIPC 91-813 cited
Microsoft Corporation v Electro-Wide Limited [1997] FSR 580 discussed
Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd [1963] 3 All ER 493 cited

UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (ACN 000 158 592), EMI MUSIC AUSTRALIA PTY LIMITED (ACN 000 070 235), SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED (ACN 000 033 581), WARNER MUSIC AUSTRALIA PTY LIMITED (ACN 000 815 565), BMG AUSTRALIA LIMITED (ACN 004 157 564), FESTIVAL RECORDS PTY LIMITED (ACN 000 111 197) AND MUSHROOM RECORDS PTY LIMITED (005 594 043) T/AS FESTIVAL MUSHROOM RECORDS AND THE PARTIES LISTED IN THE ANNEXURE v

STEPHEN COOPER, E-TALK COMMUNICATIONS PTY LIMITED T/AS COM-CEN INTERNET SERVICES (ACN 097 058 994), COM-CEN PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 061 300 169), LIAM FRANCIS BAL AND CHRIS TAKOUSHIS

NSD 1551 OF 2003

TAMBERLIN J
22 DECEMBER 2005
SYDNEY


GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1551 OF 2003

BETWEEN:

UNIVERSAL MUSIC AUSTRALIA PTY LIMITED
(ACN 000 158 592)
FIRST APPLICANT

EMI MUSIC AUSTRALIA PTY LIMITED
(ACN 000 070 235)
SECOND APPLICANT

SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED
(ACN 000 033 581)
THIRD APPLICANT

WARNER MUSIC AUSTRALIA PTY LIMITED
(ACN 000 815 565)
FOURTH APPLICANT

BMG AUSTRALIA LIMITED
(ACN 004 157 564)
FIFTH APPLICANT

FESTIVAL RECORDS PTY LIMITED
(ACN 000 111 197)
AND MUSHROOM RECORDS PTY LIMITED
(ACN 005 594 043)
T/AS FESTIVAL MUSHROOM RECORDS
SIXTH APPLICANT

THE PARTIES LISTED IN THE ANNEXURE
SEVENTH TO THIRTY-FOURTH APPLICANTS

AND:

STEPHEN COOPER
FIRST RESPONDENT

E-TALK COMMUNICATIONS PTY LIMITED
(ACN 097 058 994)
T/AS COM-CEN INTERNET SERVICES
SECOND RESPONDENT

COM-CEN PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
(ACN 061 300 169)
THIRD RESPONDENT

LIAM FRANCIS BAL
FOURTH RESPONDENT

CHRIS TAKOUSHIS
FIFTH RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

22 DECEMBER 2005

WHERE MADE:

SYDNEY

Note: Certain expressions used in these orders are defined for the purposes of these orders in the Schedule of Definitions

THE COURT DECLARES THAT:

As against the first, second, third, fourth and fifth respondents

1.The first, second, third, fourth and fifth respondents have infringed the copyright in sound recordings in the Universal Recordings, by:

(a)authorising the making of copies of; and

(b)authorising the communication to the public of,

the whole or a substantial part of those sound recordings without the licence of the first applicant or the owner of the copyright.

2.The first, second, third, fourth and fifth respondents have infringed the copyright in sound recordings in the EMI Recordings, by:

(a)authorising the…

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Details
Case
[2005] FCA 1878
Decision Date

CaseChat Overview and Summary

In the case of Universal Music Australia Pty Ltd v Cooper, a group of music companies, including Universal Music Australia Pty Ltd, sued various individuals and entities, including Stephen Cooper, for copyright infringement and related breaches. The dispute was adjudicated in the Federal Court of Australia. The court had to decide on several legal issues, including the validity and scope of the declaratory orders sought by the applicants, the appropriateness of the injunctive relief, and the allocation of costs between the parties.

The court found that the declaratory orders were appropriate as they represented legal determinations based on the facts of the case, rather than mere restatements of the factual findings. The court rejected the argument that the declarations should not be made because they were not necessary or did not have appropriate terms. Regarding the injunctive relief, the court granted permanent injunctions against the respondents to prevent them from copying, authorising the copying, communicating to the public, or authorising the communication to the public of the copyrighted sound recordings without the necessary licenses. The court also ordered the respondents to pay specific and proportionate costs, with the majority of the costs being borne by the first respondent, Stephen Cooper.

The court's reasoning was based on the need to protect the intellectual property rights of the applicants and to deter future infringements. By granting the declaratory orders, the court provided clarity on the legal status of the copyrighted material and the infringements that had occurred. The injunctive relief was deemed necessary to prevent further unauthorised use of the copyrighted material. The cost orders were designed to ensure that the applicants were adequately compensated for the proceedings, with the costs being apportioned according to the court's assessment of each respondent's liability.

Orders

Orders of the court

As against the first, second, third, fourth and fifth respondents

13. The first, second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of any of the sound recordings in the Universal Catalogue including the Universal Recordings without the licence of the first applicant or the owner of the copyright.

14. The first, second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of any of the sound recordings in the EMI Catalogue including the EMI Recordings without the licence of the second applicant or the owner of the copyright.

15. The first, second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of any of the sound recordings in the Sony Catalogue including the Sony Recordings without the licence of the third applicant or the owner of the copyright.

16. The first, second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of any of the sound recordings in the Warner Catalogue including the Warner Recordings without the licence of the fourth applicant or the owner of the copyright.

17. The first, second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of any of the sound recordings in the BMG Catalogue including the BMG Recordings without the licence of the fifth applicant or the owner of the copyright.

18. The first, second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of any of the sound recordings in the Festival Catalogue including the Festival Recordings without the licence of the sixth applicant or the owner of the copyright.

As against the first respondent

19. The first respondent, whether by himself, his servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of the Universal Hard Drive Recordings without the licence of the first applicant or the owner of the copyright.

20. The first respondent, whether by himself, his servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of the EMI Hard Drive Recordings without the licence of the second applicant or the owner of the copyright.

21. The first respondent, whether by himself, his servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of the Sony Hard Drive Recordings without the licence of the third applicant or the owner of the copyright.

22. The first respondent, whether by himself, his servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of the Warner Hard Drive Recordings without the licence of the fourth applicant or the owner of the copyright.

23. The first respondent, whether by himself, his servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of the BMG Hard Drive Recordings without the licence of the fifth applicant or the owner of the copyright.

24. The first respondent, whether by himself, his servants or agents or otherwise, be permanently restrained from:

(a) making a copy of;

(b) authorising the making of a copy of;

(c) communicating to the public; or

(d) authorising the communication to the public of,

the whole or a substantial part of the Festival Hard Drive Recordings without the licence of the sixth applicant or the owner of the copyright.

As against the first respondent (Website)

25. The first respondent whether by himself, his servants or agents or otherwise, be permanently restrained from operating or hosting, assisting in the operation or hosting of, or being knowingly concerned in the operation or hosting of the website that was located at the URL www.mp3s4free.net (the website) without the licence of the applicants or the owner of the copyright in the relevant sound recording.

As against the second, third, fourth and fifth respondents (website)

26. The second, third, fourth and fifth respondents, whether by themselves, their servants or agents or otherwise, be permanently restrained from operating or hosting, assisting in the operation or hosting of, or being knowingly concerned in (including by advertising, whether by use of the Com-Cen logo or otherwise) the website that was located at the URL www.mp3s4free.net (the website) without the licence of the applicants or the owner of the copyright in the relevant sound recording.

As against the first respondent (costs)

27. The first respondent pay the applicants’ costs on and from 21 October 2004 of and associated with proof of subsistence and ownership of copyright in the Universal Recordings, the EMI Recordings, the Sony Recordings, the Warner Recordings, the BMG Recordings and the Festival Recordings except insofar as such costs are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the applicants will be completely indemnified by the first respondent in respect of such costs.

As against the first, second, third, fourth and fifth respondents (costs)

28. The applicants should otherwise only recover 80 per cent of their costs of the proceedings up to and including the delivery of judgment on 14 July 2005 as agreed, taxed or fixed pursuant to O 62 r 4(2).

29. The costs of the applicants should be apportioned between the respondents as follows:

(a) 70 per cent to be paid by the first respondent;

(b) 20 per cent to be paid by the second to fourth respondents; and

(c) 10 per cent to be paid b y the fifth respondent.

30. The applicants have leave to tax the costs referred to in orders 27 and 29 forthwith.

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

SCHEDULE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SCHEDULE J

The applicants have prepared draft Short Minutes of Order. Pursuant to orders made by me on 8 August 2005, the parties have each filed written submissions on the form of the orders and costs. The parties are in disagreement as to several matters arising from the applicants’ Short Minutes of Order, including whether declarations should be made, the terms of any such declarations, whether injunctive relief should be granted, the terms of any such injunctions and the apportionment, nature and extent of orders as to costs.DECLARATIONS The first six draft orders are in the form of declarations of right sought against each of the respondents. The second to fifth respondents do not object to the making of the declaratory orders, however, they make submissions as to the extent and wording of these declarations. Stephen Cooper, the first respondent, objects to the making of declaratory orders on the basis that they are not necessary and the terms of the declarations are not appropriate as regards him. Mr Morris QC for Stephen Cooper submits that the proposed declarations lack utility and will produce no foreseeable consequences, as they are merely summaries of the findings of fact, inappropriately recast in the form of declarations. Mr Morris QC submits that the declarations are advisory and hypothetical and do not declare the rights of the parties and therefore the declarations should not be made: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2. I do not accept the submission of Mr Morris QC. Each of the six orders is in the form of a declaration that copyright has been infringed in specified ways and that there has been no licence for such activities. These declarations of infringement arise directly from the application of the law to the facts as found and are rulings that the law has been infringed. These are determinations of law and not simply a reformulation of the factual findings. In so far as the declarations pronounce that there have been infringements, they declare the consequence of the application of the law to the circumstances of the case. All the respondents object to the terms of the first six declarations on the ground that they are said to travel beyond the evidence and the specific findings made. This is said to arise because it has not been established that every recording in the catalogues referred to in the proceedings has been proven to have been infringed and, therefore, the claim for infringement of copyright has not been established in relation to each of these recordings. The declarations refer, for example, to “sound recordings in the Universal Catalogue, including the Universal Recordings”. The expressions “Universal Catalogue” and “Universal Recordings” are defined in the Schedule of Definitions to the Short Minutes of Order. The specific claim levelled by the respondents is that the declarations cover a very large number of sound recordings and include sound recordings other than those specific “Universal Recordings”, as defined in the Schedule, which are dealt with in the evidence and referred to in the reasons for judgment. It is said that in order for the declarations, as sought, to be made, it would be necessary to make further findings and to consider more evidence.