p2pnet.net New View:- In Australia, the Federal Court recently brought down its judgment in the ComCen case (Universal Music Australia Pty Ltd v Cooper [2005] FAC 972).

As we know, following an investigation by Music Industry Piracy Investigations (MIPI) into the website www.mp3s4free.net, Universal Music Australia and 30 other companies, including seven international companies, commenced proceedings against the alleged registrant of the mp3s4free.net domain name, Stephen Cooper, and ISP E-Talk Communications (trading as ComCen Internet Services). Proceedings were also commenced against an employee of ComCen, Chris Takoushis, and the principal of ComCen, Liam Bal.

The record companies were successful against all of the respondents primarily on the basis of authorisation and the existence of misleading and deceptive conduct.

Interesting? Yes. Revolutionary? Probably not.

If anything, our interest in the case says more about the nature of the internet rather than the case itself. Despite that, ISPs and p2p companies will be studying the transcript very carefully.

It might cause them a little heartburn initially, but when they trudge through the minutia of the judgement, I think they will recover.

Common law legal systems are a funny thing
It’s funny … you think you know what a judge will say in a given set of circumstances, and he or she goes ahead and surprises you. It should be simple. Common law legal systems are built on precedent … a court makes a finding based on a piece of legislation, and the next court in the same jurisdiction to consider the same legal issues uses the prior decision as a precedent and arrives at the same result … sometimes!

Of course, the facts in court cases vary in each instance, the law changes from time to time, and there are changing political, moral, economic and social imperatives which influence judges and ultimately impact on legal decisions. Legal decisions are supposed to reflect social attitudes, and of course social attitudes change over time (at least we hope they do!)

Australia, Canada, the US, the UK and other countries share a common law system. (No slight intended to readers from outside these jurisdictions, but it’s impractical to list all common law countries here. Maybe we’ll revisit the issue when the Commonwealth Games are on!)

A decision in Oz like the decision in the ComCen case will not be binding in Canada, and the Grokster decision will not be binding in Australia. But these, and other, cases demonstrate a worldwide pattern of jurisprudence and may provide some guidance as to the direction of future legal decisions – especially where the internet is involved. Nobody has a crystal ball, but we all like to take guidance where we can find it.

Judges often accept guidance. Courts sometimes cite and refer to decisions made in other jurisdictions. Although not binding, these precedents are otfen useful.

For example, in the ComCen case, Tamberlin J. discussed Universal City Studios, Inc v Reimerdes, a leading US case. His honour used the case to obtain a “proper understanding of the concept of linking to remote computers and the downloading of files from those remote computers”.

Global nature of the internet
And let’s not forget the nature of the internet and internet based technology. We, as internet users, can log onto websites in Germany, download music from the Netherlands, email friends in Japan, read blogs from New Zealand, and Skype our friends in South Africa. The internet’s jurisdiction can’t be confined to a single country. Despite the best attempts of some governments, no one can effectively control the behaviour of individuals online. If your Government declares your spam site illegal, you can take it offshore!

The jurisdiction and operation of the internet remains global. As such, no single body of law can be described as the law of the internet. At best, all we can say is that the law of the internet is a confusing mix of laws from various legal systems, combined with even more confusing judicial interpretations of the laws. Often these laws and judgements are unclear and appear to be in conflict with each other.

All of this explains why we as individuals take a great deal of interest in legal decisions outside of our own country, especially when they involve the internet, ISPs and intellectual property.

So what does the ComCen case mean?
I’ve been asked what the ComCen decision will mean for international ISPs, and the peer-to-peer cases being heard and yet to be heard in Australia, which are to do with Kazaa and Swiftel (Perth ISP). At the outset, there’s no clear answer to these questions for all the reasons I’ve indicated above.

I know … cop out, typical lawyer … wouldn’t know a single sentence answer if it hit him in the head!

Put simply, we have a Federal Court finding against an Australian website operator, an ISP, the ISP’s principal and the ISP’s employee.

Applicability to peer-to-peer cases

(1) Control
Unlike p2p systems, the mp3s4free.net website which was the subject of the ComCen case allowed users to download music directly from a centralised server. These downloads were able to take place through direct links which could have been switched off, had the proprietors of the website chosen to switch them off, thereby preventing the copyright infringing activities.

This evidence can be contrasted to the Kazaa case where evidence was presented which suggested the alleged proprietors of the Kazaa Media Desktop couldn’t “switch off” the Kazaa system, even if they’d wished to. Indeed, it’s been suggested by technical experts that even if the applicant record companies are successful in the Kazaa case, it will have little or no impact on the operations of the Kazaa system.

While Cooper couldn’t control which sound recordings were available for download from the linked websites in the ComCen case, he had “sufficient control of his own website to take steps to prevent the infringement.” Certainly, the discussion in the Kazaa case seems to suggest less control by the proprietors than in this case.

(2) Infringing nature
In what may also distinguish the ComCen case from future p2p cases, his honour found the Cooper website was, “carefully structured and highly organised” It was “clearly designed to, and does, facilitate and enable this infringing downloading.” According to his honour, Cooper “knowingly permitted or approved the use of his website in this manner and designed and organised it to achieve this result.”

As I indicated earlier, political, moral, economic and social imperatives influence judges. In this case, the judge was obviously very unhappy with the Mp3s4free website – perhaps he wanted to punish the parties who he saw to be primarily responsible for this website. Such a view, though unsophisticated and “unlawyerly”, is consistent with the result in this case.

(3) It’s not called the “Tradeyourillegalfiles4free Media Desktop”
Arguably, p2p systems lack some of the blatant “hooks” which were designed to attract copyright infringers to the Mp3s4free. Mp3s4free had many hooks, including a name which clearly suggested that the primary, if not sole, activity at the website was the making available of sound recordings in an mp3 format for “free” downloading by users … free of restrictions, free of the need for payment and free of the hindrance of those pesky licensing agreements! Obviously, there are no similar imputations inherent in the “Kazaa”, “Grokster” or “BitTorrent” names, to name three of the more popular p2p systems.

Unlike Mp3s4free, p2p systems have many non infringing uses. Examples include paid or so-called ”authorised” downloads, personal information sharing (creative writing, blogs), communication (Skype etc.) … feel free to add to the list.

(4) Let’s play hide the disclaimer
Mp3s4free had a misleading and deceptive disclaimer which was not an accurate representation of Australian law. Included in the disclaimer, was this juicy statement:

“All audio files can be downloaded for evaluation purposes only and must be deleted after 24 hours.” This is an incorrect statement of the legal position of website users in Australia.

Most p2p systems appear to at least attempt to present a reasonable and accurate disclaimer. For example, the BitTorrent website contains the following statement:

“File sharing is not illegal as long as you obey and comply with all relevant copyright laws. Sharing copyrighted material without permission is illegal.” The Kazaa website also invites users to “publish … self-authored content. Just place public domain content and/or your photos, book, articles, art work or independent films in your ‘My Shared Folder’ and users worldwide will be able to find and download them. You can promote your blog or website to other users via Kazaa and find other users’ blogs and sites.”

So … will the ComCen case cause concerns for P2P companies … um … definitely maybe, or perhaps not, but then again …

Alex Malik – p2pnet
[Malik is a lawyer, music industry commentator and academic researcher at the University of Technology in Sydney.]

This entry was posted on Sunday, July 17th, 2005 at 5:49 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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