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, 116AHUniversal 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…
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- Case
- [2005] FCA 972
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: TAMBERLIN J
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