Full Court of the Federal Court of Australia, Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

Cooper and his hosting provider, Comcen, were liable for authorising infringements by users of his website, mp3s4free.net, which linked to infringing MP3 files on third-party websites. The index was populated by links submitted by users, but no infringing material was stored or communicated by Cooper or ComCen. The court found that Cooper had the power to prevent infringement because he could have not provided his website in the first place (Branson J) or could have not accepted or subsequently disabled and removed links to infringing content (Kenny J). Second, the relationship between Cooper and users was commercial, because Cooper benefitted financially from sponsorship and advertisements on the website which directly increased with the volume of infringing content. Finally, the court held that Cooper did not take any reasonable steps to prevent or avoid the infringements. The disclaimer on his website (“When you download a song, you take full responsibility for doing so. None of the files on this site are stored on our servers. We are just providing links to remote files.”) was merely cosmetic and had no real effect. Justice Kenny concluded that the website “was in substance an invitation to use the hyperlinks provided” and that Cooper. The court also held Cooper’s ISP, Comcen, liable for authorisation. The court found that Comcen was aware of the high level of usage of Cooper’s website and its problems with copyright. Comcen also benefited from infringements: Cooper received free web-hosting in exchange for displaying the Comcen logo on his website. Comcen had the power to prevent the infringements because it had the power to withdraw the hosting of Cooper’s website, but that it had not taken the “reasonable steps” of either withdrawing hosting or placing pressure on Cooper to stop his website being used predominantly for copyright infringement.