AUZ FINDS ISP LIABILITY IN PIRACY CASE

The IPKat learns from Andrew Fuller that the Australian Full Federal Court yesterday confirmed a finding of infringement by authorising copyright infringement against the owners of a file-sharing website, MP3s4FREE.com, an ISP and their respective directors.

The court found that

"Mr Cooper [the director of MP3s4FREE] had power to prevent the communication of copyright sound recordings to the public in Australia via his website…. He had that power because he was responsible for creating and maintaining his MP3s4FREE website….It was not reasonably open to Mr Cooper to claim mere indifference to the use internet users made of the website”.

Moreover,

“E-Talk [the ISP] countenanced the infringing downloading by internet users who visited the website that it hosted.”

Likewise, the ISP’s director had failed to take reasonable steps to prevent the infringement.

The IPKat is a little worried by this decision – is it imputing to ISPs knowledge of everything on the websites that they host? If so, it place a policing burden on ISPs, and therefore have a chilling effect on the internet.

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3 comments:

AnonymousTuesday, 19 December 2006 at 11:45:00 GMT
I'm guessing that the ISP had refused to take the site down after being informed of its existence. IIRC (too lazy to look it up right now) the UK's E-Commerce Regulations exempt ISP's from liability provided they act when notified of an infringement on sites hosted by them.
AnonymousWednesday, 20 December 2006 at 05:05:00 GMT
If you look at the facts in the judgement, the ISP knew what the site did because they helped Cooper set up his site.
AnonymousWednesday, 20 December 2006 at 05:43:00 GMT
To clarify the position, both the primary judge and the Full Federal Court made it clear that the relevant tests for the authorization of copyright infringement under s101(1A) are whether (a) the ISP had power to prevent the copyright infringement; (b) the relationship between the ISP and the copyright infringers; and (c) whether the ISP took reasonable steps to prevent or avoid the acts of infringement.

In this case, the Full Federal Court stated that the ISP was on notice of the content of the website and the "copyright problems that arose from its operation". The ISP was also held to have had the power to withdraw the hosting of Mr Cooper's website. Rather than withdrawing hosting the ISP actually sought to achieve a commercial advantage from advertising on Mr Cooper's website.

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