Legal Research
Cases
Universal Music Australia Pty Ltd v Cooper

Universal Music Australia Pty Ltd v Cooper

Link copied

Case Copied 14 July 2005 71 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Universal Music Australia Pty Ltd v Cooper [2005] FCA 972
INTELLECTUAL PROPERTY – copyright – infringement of copyright – downloading of copyright music recordings from the internet – no licence to download the music recordings – music recordings stored on remote websites – Cooper website provided hyperlinks to remote websites – internet users able to independently add hyperlinks to the Cooper website – Cooper website was highly organised and contained charts of music recordings and search engines for music recordings – Cooper received free web hosting from E-Talk/Com-Cen in return for advertising their logo on the website – extent of knowledge of the other respondents of the content of the Cooper website – whether Cooper directly infringed the exclusive right to communicate the sound recordings to the public – whether respondents infringed copyright by authorising the infringements of copyright by the operators of the remote websites or the internet users who downloaded the music sound recordings – whether respondents liable as joint tortfeasors – whether respondents sold or exposed for sale an article – meaning of “article” – whether US Free Trade Agreement Implementation Act 2004 (Cth) applies retrospectively to this situation
TRADE PRACTICES – misleading and deceptive conduct – whether website and/or domain name conveyed misrepresentations regarding the legality of downloading copies of the music sound recordings from the internet
EVIDENCE – rule in Jones v Dunkel (1959) 101 CLR 298 – strengthening of adverse inferences by failure of the respondents to call witnesses
WORDS AND PHRASES – “article”, “make available online”, “person responsible for determining the content”
Trade Practices Act 1974 (Cth) ss 52, 53, 75B 82
Queensland Fair Trading Act 1989 (Qld) ss 38, 99
Fair Trading Act 1987 (NSW) ss 42, 68
Copyright Act 1968 (Cth) ss 10, 21, 22, 24, 39B, 85, 101, 103, 111A, 112E, 115, 116, 132(9), 134A(1), Pt V Div 2AA
Copyright Amendment (Digital Agenda) Act 2000 (Cth) s 3
US Free Trade Agreement Implementation Act 2004 (Cth), ss 116AF, 116AG, 116AH
Universal City Studios, Inc v Reimerdes 111 F.Supp.2d 294 (SDNY 2000) discussed
Helvering v Gregory (1934) 69 F.2d 809 referred to
Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140 cited
WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274 applied
Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53 referred to
University of New South Wales v Moorhouse (1975) 133 CLR 1 followed
Nationwide News Pty Ltd v Copyright Agency Limited (1996) FCR 399 referred to
Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 61 IPR 575 applied
Adelaide Corporation v. Australasian Performing Right Association Ltd (1920) 40 CLR 481 referred to
Nominet UK v Diverse Internet Pty Ltd (2004) 63 IPR 543 referred to
Maxwell v Murphy (1957) 96 CLR 261 referred to
Jones v Dunkel (1959) 101 CLR 298 referred to
Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 referred to
Molnlycke AB v Proctor & Gamble Pty Ltd (No…

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.

Keep reading for free

Create a free CaseChat account to read Universal Music Australia Pty Ltd v Cooper and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FCA 972
Decision Date: 14 JULY 2005

CaseChat Overview and Summary

Universal Music Australia Pty Ltd, the applicant in this matter, brought an action against several defendants for copyright infringement through the use of various websites. The applicants sought declarations of infringement, as well as injunctive and other relief. The primary defendant, Cooper, was found to be involved in the facilitation of the downloading of copyrighted material, with evidence pointing to specific actions taken to encourage and enable these infringements. The court found that Cooper’s actions went beyond the mere provision of a facility and involved significant encouragement and structuring of the website to facilitate the infringements.

The legal issues before the court included whether Cooper's actions were protected under section 112E of the Act, which provides a defence for internet service providers under certain conditions, and whether the defence could be applied retroactively given the legislative amendments introduced by the US Free Trade Agreement Implementation Act 2004. The applicants argued that the amendments were substantive rather than procedural and thus should not be applied retrospectively unless expressly stated. The court examined the wording and intent behind the legislative changes, considering established legal principles regarding the retrospective application of statutes.

In its reasoning, the court determined that Cooper's actions did not fall under the protection of section 112E, as his involvement was more than merely providing a facility. The court held that Cooper actively encouraged and facilitated the infringements, thus breaching copyright law. Regarding the legislative amendments, the court found that the changes introduced by the FTA Act were substantive and should not be applied retrospectively without clear legislative intent to do so. Consequently, the court concluded that Cooper was liable for the copyright infringements and that further investigation was necessary to determine the exact number of infringements.

In light of these findings, the court ordered that appropriate Short Minutes of Orders be filed and served within fourteen days to formalise the declarations and provide for costs.

Orders

Orders of the court

The applicants are to file and serve, within fourteen days, appropriate Short Minutes of Orders to give effect to these Reasons for Judgment and as to costs.

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

TAMBERLIN J

The applicants emphasise the reference to the word “merely” and say that the section has no application in the present case because the circumstances indicate that Cooper has been far more involved than just providing the facility that has been used to make the communication. In my opinion, the circumstances of this case are taken outside the protection afforded by s 112E of the Act because Cooper has offered encouragement to users to download offending material, as evidenced by the numerous references to downloading material on the website, and has specifically structured and arranged the website so as to facilitate this downloading.CONCLUSIONS IN RELATION TO COOPER I am satisfied that copyright subsisted in the sound recordings and that there was a breach of copyright as a consequence of the communication, both in the sense of electronic transmission and making available online, of the sound recordings from the remote websites to the internet users who activated one of the hyperlinks that had been set up on the website as a direct or indirect consequence of the activities undertaken by Cooper. I consider that Cooper has breached the Act by reason of authorising acts comprised in the copyright, in the sense of permitting or sanctioning and facilitating the infringements of the Act by the internet users who access the website and also by the owners or operators of the remote websites from which the infringing recordings were downloaded. In my view, Cooper does not attract the protection of the defence under s 112E of the Act. I do not find that Cooper has infringed copyright by reason of sale or dealings in an article within the meaning of s 103. For these reasons, I am satisfied that Cooper is liable for breach of copyright in relation to the relevant sound recordings. I consider that it is necessary for further and more detailed investigations to be undertaken into the precise number of infringements that have taken place in order for a more specific declaration to be made.the second to fifth respondentsThe US Free Trade Agreement Implementation Act 2004 (Cth) The second to fifth respondents seek to rely on the amendments to the Act effected by the US Free Trade Agreement Implementation Act 2004 (Cth) (“the FTA Act”), which came into effect on 1 January 2005 after the initial hearing of this matter had taken place. The FTA Act inserted Div 2AA into Part V of the Act. The effect of these amendments was, broadly speaking, to provide a defence for internet service providers which excluded liability for damages for copyright infringement upon certain conditions. The applicants submit that these amendments constitute substantive amendments to the law, as opposed to procedural amendments, and therefore the Act should not, unless clearly indicated otherwise, be read to operate retrospectively. The applicants refer to the statement of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

Full text does not contain this section.