15 In addition to being highly structured, with hyperlinks to many other pages, the evidence is that the website was user friendly and attractive and that visitors could readily select from a variety of catalogues of popular sound recordings for download. The digital copies of the sound recordings were downloaded by way of hyperlinks on the website, most of which appear to have been associated with MP3 digital music files stored on remote websites that would automatically download to the visitor's computer upon activation of the link on the website by a mouse click. As a consequence of clicking on the hyperlink trigger on the website, music files were downloaded directly from the remote website on which they were stored to the computer of the internet user who had accessed the Cooper website.
16 The home page of the website is headed "MP3s4FREE". There are, of course, numerous other web pages on the Cooper website. The home page contains statements concerning the availability of free songs and albums on the website and numerous references to MP3 files and downloads. On the right hand side of each of the web pages on the website, the Com-Cen logo appears beneath a reference to "Best Server". The numerous pages of the website include thousands of music files organised by artist name and song title and hyperlinks are provided directly to those music files.
17 Mr Speck gave evidence that the music files on the website are accessible in three main ways. First, the lists of music files are organised on the website in the form of charts which reproduce current Australian and international recording industry music charts, which reflect commercially successful recorded music. These charts include the Australian Top 40, Billboard 50 and a number of European charts. The evidence is that the Australian Top 40 chart corresponds exactly to the first 40 singles that appear in the Aria Top 50 chart for each relevant week. The charts on the website replicate the order of the singles, the names of the artists and the titles of the singles. Secondly, there are search mechanisms such as "Popular Artists", "Top 50 Downloads" and "Latest 50 Additions" which reflect the most popular files which can be downloaded through the website and the latest music files that have been added to the website via hyperlink. Finally, website maintains an archive of files arranged in alphabetical order by song title or artist name. These archived files can be located using the main search mechanism, entitled "Search for Artist or Title", at the top of each of the web pages on the website.
18 Hypertext links, often referred to as "links" or "hyperlinks", are a standard internet technology that is used to enable internet users to move between web pages, which are usually displayed in ".html" code, and other information. A hyperlink is a means by which an internet user is able to access files in which he or she is interested. Hyperlinks are frequently identified in a user's internet browser by coloured, usually blue, and underlined text. However, this is not always so. In some cases, hyperlinks may be different colours or otherwise identified. A hyperlink notifies an internet user that by using an electronic mouse to click on the link, they will be able to receive information that does not appear on the web page they are currently viewing.
19 Linking is a central feature of the World Wide Web. One way in which links are used is to direct internet users to another web page, whether that page is located on the same website or is part of a totally different website. Moving between web pages by activating hyperlinks on the website is a process typically known as "browsing". These other web pages may themselves contain hyperlinks to further web pages or to specific files or documents. The hyperlinks on the Cooper website are used to direct internet users to other pages of the website or to the remote websites from which the music files are downloaded. A further way in which hyperlinks are used is to enable internet users to download a specific file or document of interest. This type of hyperlink is used to activate a download of a discrete data file, such as a document or a music file, to the internet user's computer. The hyperlink sends a command to the remote computer on which the file is stored to release the file to the person who has activated the hyperlink on the website. Without this command to release the file, and the communication from the website's software, the file would not be available to the user who has requested it.
20 The above principles apply in the case of digital music files, with each file being a discrete set of data, usually with associated information such as file size, file title and other information, often described as metadata. This data can be transmitted to other computers and reproduced on the user's computer as an identical discrete set of data, usually with the same or virtually identical metadata. Therefore, when a link to a music file is activated, the remote computer on which the file is stored is directed to, and does automatically, transfer a copy of the file from the host server directly to the computer of the user activating the link. In the present case, the music file is not sent to, downloaded on or saved to the Cooper website or the host server of the Cooper website. The digital music files are stored on remote computers which are linked to the website and are accessed in the above way.
21 The ultimate location of the data file from which the download occurs is often arbitrary and frequently unknown to the internet user. It is possible that the file could be stored on the same computer server on which the webpage files are stored. But it could equally be stored on another computer with no physical proximity to the computer on which the webpage files are stored. The physical location of a data file can be, and often is, entirely independent from the location of the web pages visible to the internet user. In the case of some files, it is possible that the location of the data computer could be identified by the internet user running a mouse over the link, which would automatically display the full or the abbreviated URL address contained in the anchor tag in a panel at the bottom of the browser. Frequently, however, the location of the remote computer or the music file is not known to the internet user endeavouring to access the file by a link. Professor Sterling gave evidence that in his opinion, in the case of the Cooper website, the presence of Java script code meant that an internet user is unlikely to know where a digital music file that is listed on the website, and capable of being directly downloaded by an activating hyperlink, was located. For example, Professor Sterling said that there were no messages or signs to inform internet users that they were leaving one website and going to another.
22 In broad terms, there are two ways in which a hyperlink can be established on a website. They can be created by the operator of a website or, alternatively, the link can be created by software tools which are made available by the website to internet users to enable them to create hyperlinks that are visible on the website. The latter is what occurred in the case of the Cooper website. Professor Sterling gave evidence that a person cannot create a hyperlink between a file and website without the permission of the operator of the website, because access to the code required to create the link must occur at the website. In order for Cooper to enable files to be automatically linked to his website by internet users, he must have given permission for that access to occur. This process of adding hyperlinks to the website could not have occurred without Cooper's permission.
23 In the case of hyperlinking, it is not the physical location of the computer that is relevant but rather the network address, internet provider address and the URL address associated with the computers. If Cooper did not know this information, he could have obtained it by relatively standard technical measures which are available to any operator of a website. This information must be incorporated into the website because without that information it would not have been possible for the links to work and internet users enabled to access the files. Cooper could, if he wanted to, have asked contributors of the hyperlinks to disclose their identity by adding an extra field in the form he used without any additional complex coding being required.
24 A proper understanding of the concept of linking to remote computers and the downloading of files from those remote computers to the user is essential to understanding the technical aspects of this case. There is an excellent description of this process in Universal City Studios, Inc v Reimerdes 111 F.Supp.2d 294 (SDNY 2000) at 324-325 and 339-341 (Reimerdes), where Kaplan J of the United States District Court (Southern District of New York) refers to an anti-linking injunction and doing no violence to the First Amendment. The following description is taken from the judgment of Kaplan J at 324:
"Most web pages are written in computer languages, chiefly "HTML", which allow the programmer to prescribe the appearance of the webpage on the computer screen and, in addition, to instruct the computer to perform an operation if the cursor is placed over a particular point on the screen and the mouse then clicked. Programming a particular point on a screen to transfer the user to another web page when the point, referred to as a hyperlink, is clicked is called linking. Web pages can be designed to link to other web pages on the same site or to web pages maintained by different sites."
25 In the present case, the hyperlinks on the website function in a variety of ways. There are hyperlinks which transfer the user to a web page on a remote website that contains information of various types. In such a case, the hyperlinks take the internet user directly, or via a series of other web pages, to another page on the same remote website that posts the software. It is up to the user to follow the hyperlink, or series of hyperlinks, on the remote site in order to arrive at the page that contains the hyperlink to the music recording and commence the download of the software. The download of the software takes place directly to the user. Other hyperlinks take the user to a page on a remote website on which there appears a direct link to the software, which may or may not contain links in addition to the music file. The user has only then to click on the link to the music file to commence the download. Finally, the hyperlinks may transfer the user to a music file on the remote website such that the download automatically commences without further user information being required.
26 In Reimerdes at 325,Kaplan J took the view that to the extent that the defendants had linked to sites that automatically commenced the process of downloading the music files upon the user being transferred by the defendants' hyperlinks, there was no doubt that they were engaged in the functional equivalent of transferring the music files to the users themselves. His Honour took the same view in relation to the defendants' hyperlinks to web pages that displayed nothing more than the music files or presented the user with the sole option of commencing a download of the music files. His Honour said that the only distinction was that the entity extending to the user the option of downloading the program was the transferee website and not the defendants' website, which his Honour considered to be a distinction without a difference.
27 In Reimerdes, after being enjoined from posting the music files themselves, the defendants urged others to download the material and to inform the website owners they were doing so. The defendants then linked their own website to those mirror sites. At 339, Kaplan J stated:
"Links bear a relationship to the information superhighway comparable to the relationship that roadway signs bear to roads but they are more functional. Like roadway signs, they point out the direction. Unlike roadway signs, they take one almost instantaneously to the desired destination with the mere click of an electronic mouse. Thus, like computer code in general, they have both expressive and functional elements."
28 Justice Kaplan continued at 340:
"Links are 'what unify the [World Wide] Web into a single body of knowledge, and what make the web unique.' They 'are the mainstay of the Internet and indispensable to its convenient access to the vast world of information.' They often are used in ways that do a great deal to promote the free exchange of ideas and information …."
29 In October 2003, after the execution of the Anton Piller orders made by Emmett J on 17 October 2003, data, including statistics about the operation of the website, was captured from the E-Talk/Com-Cen premises at Camperdown, New South Wales. The statistics confirm that the website was a very successful and active website which attracted internet users from around the world and a significant traffic from Australian internet users. The largest of the files copied from E-Talk/Com-Cen's computer equipment was the log of transactions with the website for the past 12 days ("the Access Log File"). The Access Log File indicated that there were in excess of 5 million separate text entries occurring within a period of approximately 12 days. The Access Log File contained records of the IP address or host names used by the computers accessing the website. There were in excess of 214,000 unique hosts identified, a number of which had the suffixes ".com.au" (5,676 hosts), ".net.au" (5,738 hosts), ".edu.au" (207 hosts), ".gov" (64 hosts) and ".gov.au" (40 hosts). The records also indicated that requests for searches were made by over 61,000 of the unique hosts during the 12 day period, constituting in excess of 107,000 searches for names which matched the recording artists listed in the Further Amended Application filed on 14 October 2004. The Access Log File also records the requesting by user computers of the Com-Cen logo that appeared on the website. There were 531,499 entries for the "comcen.gif" file in the Access Log File confirmed as downloaded to user computers.
30 At the bottom of each page of the website, there are hyperlinks to the website's "Privacy Policy", "Terms and Conditions" and "Disclaimer". The "Terms and Conditions" contains the following statement which emphasises the linking function provided by the website:
"Set forth below are the terms and conditions … governing the MP3s4FREE.NET website located at, or linked to through, the route url www.mp3s4free.net, which may expand or change from time to time (the "Website").
…
Sites Linked from the Website: Links to third-party websites from the Website are not necessarily under MP3s4FREE's control … and MP3s4FREE does not intend any such links to third-party websites to imply MP3s4FREE's sponsorship or endorsement thereof." (Emphasis added)
The "Disclaimer" acknowledges the linking function of the website in the following terms:
"… 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." (Emphasis added)
The linking function of the website is also acknowledge in the Privacy Policy in the following terms:
"External Links: This site contains links to other sites.
…
Disclaimer: … This site only provides links to the according sites and no songs are located on our servers. … We are not responsible for any damage caused by downloading these files, or any content posted on this website or linked websites."
FACTUAL BACKGROUND
31 Cooper first started operating the website in or about February 1998.
32 On 13 August 1993, Com-Cen was registered with the Australian Securities and Investment Commission. Com-Cen had previously traded as PC Rentals (NSW) Pty Ltd from 11 August 1993. Mr Bal was, at all times, a director of Com-Cen and the majority shareholder of the company. In September 1999, Takoushis commenced work as an employee of Com-Cen.
33 On 17 October 2000, Cooper entered into an "Affiliation Agreement" with Internet Music Corporation to receive revenues derived from advertising and new services to the website. The following day, Cooper entered into another "Affiliation Agreement" with an entity known as eFront Media Inc by which he was entitled to receive revenues derived from advertising through advertising banners, badgers, buttons and text links on the website.
34 On or about 20 December 2000, Com-Cen agreed to host the website owned and operated by Stephen Cooper. On 21 December 2000, Cooper purchased internet services, including internet access, from Com-Cen for a three month period for a sum of approximately $65.00. In March 2001, Cooper made arrangements with Com-Cen for the purchase of standard internet access for $114.00 every three months. The evidence shows that invoices were issued by Com-Cen every three months for this amount. The final two invoices issued by Com-Cen for the provision of standard internet access are dated 2 and 21 September 2003 respectively.
35 On 5 February 2001, Cashsponsors.com approved Cooper's application to join their affiliate program and for payments to be sent to him.
36 On 27 March 2001, Cooper emailed Takoushis with an offer to advertise Com-Cen's internet services to visitors to the website in return for the possibility of free hosting of the website or free internet access or some other arrangement suitable to both parties. On 30 March 2001, Takoushis sent an email to Cooper indicating that Com-Cen was interested in Cooper's offer and proposing that the Com-Cen logo and/or a "Powered by Com-Cen" banner be displayed on the website in return for free hosting of the website. The invoices issued to Cooper by Com-Cen from 21 June 2001 onwards contain only a charge in relation to "standard internet access". The fee for "virtual site: MP3s4free.net" is "nil". During the period 27 December 2000 to the present, the only charge made by Com-Cen to Cooper was for internet access.
37 It can be seen from the web pages which constitute the website that there are advertisements for "Play Casino". These appear to date from 6 June 2001, when Casinotraffic.com opened an account with Cooper for monthly payments for advertising on the website.
38 On 7 June 2001, E-Talk was registered with the Australian Securities and Investment Commission and Mr Bal was shown as a director. There was also another director, Mr Stevens, who was a pure nominee and who acted in accordance with the decisions made by Bal. Stevens owned the remaining 27 percent of shares in E-Talk that were not owned by Bal's company, LFB Investments Pty Ltd, and was also a former director of Com-Cen Pty Ltd.
39 In April 2002, Com-Cen entered into an agreement with E-Talk whereby 3000 of Com-Cen's approximately 4500 customers were transferred to E-Talk.
40 On 13 May 2002, Cooper commissioned an American based software programmer known as Thanesh to create a database to manage and search for files on the website.
41 On 17 June 2002, the name Com-Cen Internet Services was registered as a business name in New South Wales and E-Talk was identified as carrying on that business.
42 In early September 2002, E-Talk entered into a service agreement with a company known as Asia Global Crossing Australia Pty Limited. This agreement was authorised by Mr Bal as the managing director of E-Talk.
43 On 31 August 2002, an administrator was appointed to handle the affairs of Com-Cen. Soon afterwards, a series of complaints were made and investigations took place in relation to allegations of unauthorised use by Cooper of music recordings without a licence. These began when the Australian Society of Composers, Authors and Publishers issued a warning letter to Cooper in relation to his activities. Investigations of the website by MIPI began in December 2002. Various downloads from the site were made by Mr Beckett, in the course of writing and investigating his report, and by Mr Speck, a forensic investigator, qualified and experienced in the operation of the internet and websites. Between 13 January 2003 and 8 July 2003, downloads were made from the website by Mr Speck in the course of his investigations on behalf of the applicants. On 11 July 2003, a printed record was made of the capture of the entire website by Mr Speck. Investigations in the form of downloads from the website continued up to October 2003.
44 On 17 October 2003, these proceedings were commenced and Anton Piller orderswere executed at the premises of Cooper and at the business premises of E-Talk/Com-Cen.
45 On 24 October 2003, Cooper consented to injunctions against the further operation of the website and the website ceased to operate on that date.
EXCLUSIVE LICENSEES
46 The respondents conceded that the applicants included each of the legal persons who owned copyright in the 116 copyright music sound recordings. However, it was submitted on behalf of Cooper that because the applicants had tendered only expurgated copies of the documents said to amount to exclusive licence agreements, it was not possible in some instances to make a determination of fact in relation to the persons alleged to be exclusive licensees. In particular, it was said that it was not possible to ascertain that any form of exclusive licence had been granted by the licensor to the licensee, the extent of the exclusive rights granted by the licensor to the licensee and the period of operation of the agreement. It was submitted that it was therefore not possible for the Court to grant relief in favour of the applicants.
47 The applicants disputed this submission, stating that there was no basis for the proposition that the copyright owners' action must fail if the Court was not satisfied that the first to sixth applicants were exclusive licensees of the relevant copyright sound recordings. In any event, the applicants said that there was no suggestion that any party other than the first to sixth applicants is, or was, at any material time, the exclusive licensee of any of the copyright subject-matter the subject of these proceedings.
48 I am in agreement with the submissions of the applicants in this regard. Section 134A(1) of the Act, to which the applicants referred in their written submissions, expressly provides that evidence that copyright subsists in a work or that copyright was owned by, or exclusively licensed to, a particular person may be given by affidavit. In the present case, sworn evidence has been provided to the Court by executives of each of the first to sixth applicants that expressly proves their standing as exclusive licensees. Furthermore, I do not accept the submission made on behalf of Cooper that the copies of the exclusive licences provided by the applicants have been redacted to such a point that their nature and effect is unclear.
THE FIRST RESPONDENT