In what is believed to be the first case of its kind in the world, the Australian music industry has listed an Internet service provider (ISP) as a respondent in a court case involving music piracy.
E-Talk Communications, trading as Comcen Internet Services, found itself in Federal Court in front of Justice Brian Tamberlin in Sydney, charged with making money from the provision of copyright-infringing music files. This is the first time the music industry has accused an ISP of being directly involved in piracy by allowing its infrastructure to be used for file-trading activities, according to Michael Speck, the manager of Music Industry Piracy Investigations (MIPI), who led the industry's investigation.
However, lawyers representing E-Talk Communications claimed in court today that the music industry, in acting against its subsidiary, Comcen, was pursuing the wrong entity. They argued the industry should be pursuing another entity associated with E-Talk Communications. In response, lawyers for the music industry applicants -- which include Universal Music Australia, EMI Music Australia, Sony Music Entertainment (Australia), Warner Music Australia, BMG Australia and Festival Records -- claimed they had the right entity, and would simply add the other entity to the proceedings.
The tactic marks an escalation in the simmering battle between the music industry and the ISPs over how much responsibility the latter should take for any copyright infringing behaviour of their subscribers. Around the world the music industry is attempting to force ISPs to hand over the details of specific customers, and the Australian Record Industry Association (ARIA) pulled out of negotiations with the Internet Industry Association (IIA) over differences on this issue.
"This case proves what the music industry has been saying about the Internet industry for many years, that music piracy is an integral part of the ISP business model," Speck told ZDNet Australia . He added that the evidence uncovered in this case proves that ISPs know how much illegal file sharing is happening on their networks, and they embrace it for the revenue.
"If things don't change we'll be going after more ISPs," said Speck.
The charge is the result of an 11-month investigation into the Web site http://www.mp3s4free.net, culminating in raids on Friday and Saturday last week. The registrant of the domain name, Australian Stephen Cooper, was also charged but failed to appear in court today, prompting an adjournment of proceedings until Tuesday, 28 October.
"In my experience investigating the revenue structure of Web sites such as [mp3s4free.net] the ISP hosting the Web site, [Com-cen], stands to benefit economically from the increased consumption of bandwidth that would result from an increase in the flow of traffic to the Web site and an increase in the number of sound recordings downloaded by visitors to the Web site due to the large size of music files," said Speck's affadavit.
"The Web site appears to me to be highly organised," said Speck. "It provides a whole user interface to encourage Internet users to find digital music files and to assist them in the download process."
Lawyers for the music industry claim the Web site received 7 million unique visitors from around the world during the past 12 months.
"In my experience investigating Internet piracy and other piracy, this Web site is one of the largest sites of its kind, providing thousands of infringing recordings and continuously providing very recent releases based on top local and international charts for free download, under a highly accessible domain name and using obvious metatags," read the affidavit.
Speck also noted the Web site had disguised some music files by relabelling them as jpg files, "so as to avoid detection by persons or organisations, such as MIPI, monitoring files stored or shared".
The maintainers of the Web site appear to be aware of the illegality of their practice, as in the "Frequently Asked Questions" section under the question "Are MP3s Legal?" it reads:
"MP3s are both legal and illegal. It is legal when the song's copyright holder has granted permission to download and play the song. It's still legal if you encode the MP3 for personal use, however it is illegal to distribute or trade MP3s without permission from the song's copyright holder."
However, this is incorrect. Under current Australian laws it is illegal to make a back-up copy of legally obtained copyrighted material for personal use without the permission of the copyright holder.
The site also includes a disclaimer stating: "All audio files can be downloaded for evaluation purposes only and must be deleted after 24 hours! If you like a song, please buy the original. If you don't agree with these rules, the webmaster of mp3s4free.net, our host and advertisers, are not responsible for anything. 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."
The move comes amongst widespread opposition to the US music industry's campaign to suing individual file-swappers. A week-long boycott of the record industry which started on Monday, the "Stop RIAA Lawsuits Coalition", has seen 122 Web sites join in.