Comcen, music industry in tug of war over seized material

The Federal Court's ruling this morning means Comcen's files will be handed over to the legal representatives for Universal Music Australia and other record companies after 5pm tomorrow.

Legal representatives for Comcen today asked the Federal Court to allow them to check the 160 files and 47 e-mails copied by forensic investigator Nigel Carson during the examination, which was conducted in January 14. Mark Cohen, legal representative for the respondents, said that Carson took a "blanket approach" and "indiscriminately" copied everything that was stored in the computers.

"There may be materials that are privileged and we want to look at the library to see if there are privileged ones. We don't know if there is any privileged material on the library because we haven't seen it yet," Cohen said.

However, the legal representative for the applicants, Chris Dimitriades, argued that the respondents were aware of the contents of the files copied into a CD and DVD because someone from Comcen was present during the forensic investigation. He added that there is "no possibility of any privileged material" in the files copied by Carson, nor was there "suggestion of e-mails between solicitors".

According to Carson's affidavit, he went back to Comcen premises on January 14 after Justice Brian Tamberlin granted orders which allowed further forensic investigation.

Carson's affidavit said they were met by a Comcen employee named Con Georgiopoulos who allowed them into the premises to conduct the inquiries "under close supervision".

Approximately 12 computers were searched for text hits using the search terms "mp3s4free@" and "@mp3s4free". Carson said there were 47 other e-mails that appeared to be correspondence from Comcen employee Chris Takhoushis.

Justice Tamberlin ruled that the respondents be allowed to check the CD and DVD first for privileged correspondence before they be handed to the applicants -- Universal Music Australia and other record companies -- by 5pm tomorrow.

The Australian music industry listed Comcen and Cooper in October 2003 as respondents in a court case involving alleged music piracy after an 11-month investigation conducted by Music Industry Piracy Investigations (MIPI).

The applicants claim that Comcen benefited directly from the increased traffic on its servers as a result of the unauthorised trade of music files on the mp3s4free Web site, and that the relationship between the operator of the mp3 Web site, Stephen Cooper and Comcen extended beyond what may be expected from that between a Web site owner and their Internet provider.

Comcen maintains that they only provided services to the mp3 Web site and did not directly host the copyright-infringing music files.