No evidence against MP3 site: Counsel

During the closing statements in Friday on the trial against the operator and Internet service provider of mp3s4free over alleged copyright infringement issues, Stephen Cooper's counsel Anthony Morris said that since there was no evidence, "there is simply no basis for concluding that there was any infringement of the Copyright Act to which Cooper was an accessory".

Morris added that all the links in the Web site that did not access other HTML on the site "were links to files at remote locations".

"The links to other locations were links to files that had been submitted and automatically posted to the Web site with no necessary input on behalf of Cooper. The principal contents of the site comprised of links to other Web sites and files located on different servers....evidence clearly demonstrates that no music files were contained on Cooper's Web site," Morris said in his closing statement.

He maintained that the mp3s4free Web site "merely provided links to files contained on server computers at other locations."

Morris said Cooper's Web site was "dynamic" rather than "static," and that it employed a "CGI-BIN" script to accept link suggestions from visitors to the site. "By virtue of the script, such suggestions were automatically added to the site without the intervention of Cooper".

"When a user chose to click on links to a music file, the file was transmitted directly to the user's computer from the server computers at the other "offsite" location....Such files were never stored on, or sent from or through, the Cooper Web site located on the server computers provided by Comcen," Morris said.

"Evidence indicates that MP3 files were stored on servers located all over the world, making it impossible for Cooper to have any form of control over such files or their availability to Internet users".

Morris also said that search engines such as Google and Yahoo! provided the same facility as that of Cooper's Web site in searching for MP3 files on the Internet and that these files were not reliant on the existence of mp3s4free.net.

He added that there is no evidence any of the alleged infringing files were created as an MP3 file in Australia; uploaded from within Australia to a Web site on a server located anywhere in the world; uploaded from anywhere in the world to a Web site on a server located in Australia or made available on the Internet from a server located in Australia.

Morris said there was also no evidence that Cooper created any of the alleged infringing copies or uploaded any of them to the server computers.

"There is not one jot or tittle of evidence to establish that any one of the alleged infringing copies was actually downloaded by any person as a consequence of visiting the Cooper Web site," Morris said.

He also said that there is "no evidence from which it is open for the court to concede that Cooper ever understand [sic] that he was acting unlawfully" and that Cooper even placed disclaimers on mp3s4free that attempted to inform visitors about their obligations under copyright law.

"Indeed, the words appearing on the Cooper Web site suggest that he was of the honest -- if not mistaken -- belief that downloading MP3 files for personal use was not an infringement of copyright."

Morris said that Cooper has not sold anything from his operations on mp3s4free and that he did not attempt to hide his involvement with the Web site, "although it would have been relatively easy for him to do".

Evidence confirmed that Cooper did receive income from advertising revenue, however, Morris said it is "a very modest income" and that it is so small "as to hardly constitute the equivalent of wages for Cooper's own time".

Morris also rejected the applicants request for injunctions restraining the use of the domain name "mp3s4free.net" and an order that the Web site be transferred to the record companies or its nominee.

"The transfer of domain name is resisted by Cooper. This claim has no basis in law," Morris said in his statement.

Cooper refused to go on the witness stand during the trial.

The record companies are also suing E-Talk and Comcen for allegedly benefiting from the high traffic that Cooper's Web site obtained during its operation.

"E-Talk and Comcen clearly had the power to prevent the doing of the infringing acts, by reason of the fact that they were responsible for hosting the Web site and providing the necessary connection to the Internet. They could have halted the infringements by taking down the Web site," the record companies' counsel, John Nicholas, said.

"The evidence discloses that neither E-talk nor Comcen took any steps to prevent the acts of infringement. Neither E-talk nor Comcen took reasonable steps to prevent or avoid the doing of such acts," he said.