Music industry scores win in DJ copyright case

Six disc jockeys were ordered to pay over AU$48,000 in damages last week after being found guilty of copyright infringement charges brought forth by Universal Music and several other music industry applicants. Justice Murray Wilcox -- who is also presiding over the Sharman Networks v.

Six disc jockeys were ordered to pay over AU$48,000 in damages last week after being found guilty of copyright infringement charges brought forth by Universal Music and several other music industry applicants.

Justice Murray Wilcox -- who is also presiding over the Sharman Networks v. Universal Music copyright case - issued the punishment on Friday at an assessment of damages hearing in the Federal Court in Sydney.

Justice Kevin Lindgren had found on 19 July that six CD compilations assembled by the five respondents resulted in copyright infringement against three of the applicants, Universal Music Australia, Sony Music Entertainment (Australia) and Warner Music Australia.

The respondents - Jun Miyamoto (also known as DJ Moto), David Pacheco, Peter Papalii, Tahi Croft, Nick Garcia and Joe Sou Anau Sitoa (director of the Minesto company (or Anthem Records) that offered three of the CD's for online sale) - were found guilty of burning popular music onto CDs for disc jockeys' use at nightclub performances. In many cases, the discs were also being freely distributed and sold to patrons at the performance venues.

Justice Wilcox stated that "in each, the compilation CDs were made to enable the maker or makers to use them in musical presentations by the maker, or one of the makers, acting as a disc jockey".

He adds, "However, it would not have been necessary to make so many copies of the compilation CDs for this purpose. The purpose of making so many copies was to enable them to be given to audience members, thereby assisting the popularity of the disc jockey, or to be sold to members of the public at prices between AU$10 and AU$15 each."

Ordinary damages pursuant to section 116 of the Copyright Act - that copyright subsisted in the work -- totalled AU$18,066 in total for all the respondents, with Miyamoto and Pacheco jointly receiving the highest initial damage order of AU$9,350.

The respondents were also ordered to pay additional damages pursuant to section 115 of the Act - regarding the respondents knowledge that their act constituted an infringement and that they benefited from it -- in total of AU$30,500, with Miyamoto and Pacheco again ordered to pay the highest amount of AU$10,000 in total.

The records in question - titled Bizarre Ride, Black Label Limited, Black Label II, Black label Vol 3, Summer Jamz 2002 and Most Wanted Allstars Showtime -- were for the majority produced by Miyamoto and Pacheoco, with over 2100 in total having been distributed.

Justice Wilcox applied an approximate cost of AU$8.50 per CD in determining the loss of income for the copyright holders, and, in turn, the sum of damages to be paid by the respondents.

Despite argument from the respondents' lawyer that many of the CDs were given away, forgoing any financial benefit for the DJs in question, Justice Wilcox found that the infringements were "deliberately made for their ultimate financial gain."

"In each case, the respondent was aware that his act constituted an infringement of copyright. He flagrantly disregarded the applicants' rights," said Justice Wilcox.

"This culture might be based on a perception that sound recording companies are wealthy multinational companies and an attitude that they are, therefore, fair game. Even if the perception is factually correct, the attitude overlooks the circumstance that copyright piracy also deprives performing artists of their legitimate reward," he said.

Justice Wilcox also agreed with the Universal Music party lawyer, Richard Cobden - who is also representing Universal in the Sharman copyright case - that the DJs in question were highly regarded in the industry and as such could be seen as role models for other DJs.

Justice Wilcox stated that leniency, in the case of several respondents was overlooked due to the insincerity of their remorse over the incident.

Referring to Papalii, Justice Wilcox stated "I cannot accept his professed regret. I refer to an interview he gave... several months after the delivery of Lindgren J's judgement on liability, in which he used crudely offensive language to express his opinion about disc jockeys who strive 'to get a legit CD deal'. He added '[w]e are the real mix CD kings'".

The Justice said that additional damages awarded against him would have been AU$1500 less is he "had been satisfied of Mr Papalii's regret".

The respondents were also ordered to pay a total of AU$90,000 in court costs.

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