Music industry gains discovery win in Aussie MP3 site case

The music industry's piracy investigations unit has been given the green light by the Federal Court to continue its search of Internet service provider Comcen's computers and servers after the ISP refused to let forensic investigators gain access to its facilities yesterday afternoon.Music Industry Piracy Investigations (MIPI) chief Michael Speck said the forensics examination was scheduled to continue yesterday afternoon.

The music industry's piracy investigations unit has been given the green light by the Federal Court to continue its search of Internet service provider Comcen's computers and servers after the ISP refused to let forensic investigators gain access to its facilities yesterday afternoon.

Music Industry Piracy Investigations (MIPI) chief Michael Speck said the forensics examination was scheduled to continue yesterday afternoon. However, forensic investigator Nigel Carson received a call from Comcen managing director Liam Bal refusing entry to the premises to continue the examination.

In his affidavit, Carson said he went to Comcen's office later on the same day but he was also not permitted to enter the premises by a Comcen employee.

The forensics examination is part of the legal proceedings against the free MP3 Web site mp3s4free.net and Comcen over alleged copyright infringements involving unauthorised music files.

The applicants -- Universal Music Australia and other record labels -- went back to court this morning to ask the court permission to continue their forensic examination. Justice Brian Tamblin this morning allowed the applicants to further inspect Comcen's facilities from 5pm to 12 midnight today.

In accordance with a court order dated January 10, 2005, the MIPI searched for e-mail correspondence between Comcen employee Chris Takhoushis and the operator of the mp3 Web site, Stephen Cooper, on Tuesday afternoon.

The material previously discovered by the applicants included only three e-mails between Takhoushis and Cooper. However, the applicants claimed that a screen shot of the e-mail index showed that there were in fact over 30 other e-mails between Comcen and Cooper.

In his affidavit, Carson said he found 31 e-mails and has identified an additional 47 e-mails passing between the respondents of the case which "appear to be relevant to the mp3s4free Web site".

Carson added he has not completed his analysis of all of the computer equipment and hardware at Comcen and that it appears "there are substantially more e-mails present or able to be recovered from the equipment at the premises" than were previously revealed.

Speck said he was disappointed the applicants had to return the matter to court to get the respondents to agree to allow the search process to continue. The search relates to material still held by the respondents up to the date of the original raid of 17 October 2003.

"We are very disappointed that it has required another court order to make these people hand over the evidence we've identified. It's time these people faced the music. We know they have evidence they should have handed over. This can only be a desperate attempt to avoid responsibility," Speck said.

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 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 Cooper and Comcen extended beyond what may be expected from that between a Web site owner and their ISP provider.

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

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