E-Talk Communications Pty Limited & Anor v Universal Music Pty Ltd & Ors [2007] HCATrans 313 (15 June 2007)

Last Updated: 28 June 2007

[2007] HCATrans 313

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S40 of 2007

B e t w e e n -

E-TALK COMMUNICATIONS PTY LIMITED TRADING AS COMCEN INTERNET SERVICES

First Applicant

LIAM FRANCIS BAL

Second Applicant

and

UNIVERSAL MUSIC AUSTRALIA PTY LTD

First Respondent

EMI MUSIC AUSTRALIA PTY LIMITED

Second Respondent

SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED

Third Respondent

WARNER MUSIC AUSTRALIA PTY LIMITED

Fourth Respondent

BMG AUSTRALIA LIMITED

Fifth Respondent

FESTIVAL RECORDS PTY LTD AND MUSHROOM RECORDS PTY LTD TRADING AS FESTIVAL MUSHROOM RECORDS

Sixth Respondent

THE PARTIES LISTED IN THE ANNEXURE

Seventh to Thirty-Fourth Respondents

STEPHEN COOPER

Thirty-Fifth Respondent

CHRIS TAKOUSHIS

Thirty-Sixth Respondent

Office of the Registry
Sydney No S41 of 2007

B e t w e e n -

STEPHEN COOPER

Applicant

and

UNIVERSAL MUSIC AUSTRALIA PTY LTD

First Respondent

EMI MUSIC AUSTRALIA PTY LIMITED

Second Respondent

SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED

Third Respondent

WARNER MUSIC AUSTRALIA PTY LIMITED

Fourth Respondent

BMG AUSTRALIA LIMITED

Fifth Respondent

FESTIVAL RECORDS PTY LTD AND MUSHROOM RECORDS PTY LTD TRADING AS FESTIVAL MUSHROOM RECORDS

Sixth Respondent

THE PARTIES LISTED IN THE ANNEXURE

Seventh to Thirty-Fourth Respondents

E-TALK COMMUNICATIONS PTY LIMITED TRADING AS COMCEN INTERNET SERVICES

Thirty-Fifth Respondent

COM-CEN PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)

Thirty-Sixth Respondent

LIAM FRANCIS BAL

Thirty-Seventh Respondent

CHRIS TAKOUSHIS

Thirty-Eighth Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 JUNE 2007, AT 3.21 PM

Copyright in the High Court of Australia

__________________

MR A.J.H. MORRIS, QC: May it please the Court, I appear with my learned friends, MR L.A. JURTH and MR J.T.A. STEVENS, for the applicants in each application, the thirty-fifth respondent in the first application and the thirty-fifth and thirty-seventh respondents in the second application. (instructed by Watson Mangioni and Barwick Stevens)

MR J.V. NICHOLAS, SC: May it please the Court, I appear with my learned friend, MR C. DIMITRIADIS, for the first to thirty-fourth respondents in both applications, your Honour. (instructed by Gilbert + Tobin)

MR W.J. VAN EDE: May it please the Court, I appear for Takoushis, who is the thirty-sixth and thirty-eighth respondent respectively. (instructed by E H Tebbutt & Sons)

GUMMOW J: Yes. Now, how does your client fit into this?

MR VAN EDE: He is a party to the proceedings, but we are not intending to make any submissions, your Honour.

GUMMOW J: Thank you. Yes, Mr Morris.

MR MORRIS: Your Honours, the central issue in this application is the interrelationship between section 101 of the Copyright Act 1968, the section which defines infringing acts and specifically includes infringement by way of authorisation and section 112E, which limits or restricts the circumstances in which certain parties can be held liable for authorisation.

GUMMOW J: “Merely because” seem to be the important words.

MR MORRIS: They are the important words, but also significant is the position of them. Your Honours will see that 112E does not read “A person (including a carrier or a carriage service provider) who merely provides facilities”. The first part of the section is defining the category of people who are entitled to the benefit of it and undoubtedly the present applicants fall within that category as people who provide facilities for making or for facilitating the making of communication. So the question then is how section 112E operates to relieve them of a possible liability for authorising infringements.

What we say about the section is that whatever it means it cannot mean what it says. Whatever its proper interpretation, it cannot be a strict grammatical reading of what it says, because it is impossible that any person who provides communications facilities, whether it is Telstra providing a telephone facility or an Internet service provider providing Internet access or a carriage provider providing microwave links or cable services, none of those parties could ever conceivably be liable as authorising an infringement merely because an unrelated third party does something unlawful.

To be guilty of authorising in the first place, to even be, as it were, a candidate for the operation of section 112E, the party first has to come within section 101 as a party who authorises. The authorising cannot simply be “I provide a telephone line or an Internet access point or a carriage service which someone else uses unlawfully”.

GUMMOW J: What do you say as to Justice Kenny’s treatment of this at paragraphs 168 and 169 of the Full Court judgment?

MR MORRIS: I am embarrassed to say it, but I think I might have different pagination from you.

CALLINAN J: It is 162 and 163 in the book, I think, that - - -

MR MORRIS: Yes, thank you, your Honours. Your Honours, the situation in relation to that, in our submission, is of course her Honour’s approach was very much one based on the notion that there were findings of fact in this case which made the conduct of these applicants worse than the best imaginable case of someone who might be found guilty of authorising conduct, such as in the case of E-Talk profiting from having an advertisement on the site, knowing that the site was actively used, and so on. We submit, with respect, that that is all irrelevant.

One starts with the point: is this an authorisation? Is there an authorising act? If there is an authorising act which is something other than providing the facilities, then undoubtedly section 112E cannot apply. But her Honour is, as it were, using the provisions of subsection 101(1A), the extended definition of what is an authorising act, to create, as it were, separate authorising acts and saying because this person falls within 101 due to the operation of a combination of factors, that means that there is more than one authorising act. That, with respect, is not the point.

When one looks at section 101 by itself to start with, authorising is a difficult concept, particularly given that 101 – I am sorry to pile up references to sections, but 101 itself is a difficult provision because it is not clear whether and to what extent it overlaps with section 13(2). Section 13(2) defines the rights of a copyright owner as including the “right to authorise”. So you have under section 13, what are the rights of the copyright owner? Those rights are to do an act or to authorise the doing of an act.

Then you go to 101(1) and it says that a person infringes copyright by doing an act which is “comprised in the copyright”. So when one marries up 13 plus 101 it is as if you are looking at three types of infringements: the doing of the act, the authorising of the doing of an act, or the authorising of the authorising of the doing of the act. There is a sort of duplication.

But once one gets one’s mind around that, subsection (1A), in effect is a declaratory provision giving statutory force to this Court’s decision in the Moorhouse Case as to the sorts of things one looks at to determine whether a particular act said to be an act of authorisation is an act of authorisation. It does not create a separate or different - - -

GUMMOW J: What is the point of construction you want to – you have got three grounds, I see, in your draft notice at 181. One of them concerns 101(1), that is to say error in upholding the finding that your clients had authorised the infringement. Then you have got section 112. Are both (a) and (b) pressed?

MR MORRIS: Both (a) and (b) are pressed, your Honour, but really as they are set out in the documents, they are set out as if they were two points but they are essentially the one point, that there has to be an act of authorisation found which is other than an act which has to be dropped from consideration under 112E, that is to say, an act of authorisation other than merely providing facilities.

What both the learned primary judge and the Full Court did was purport to make findings of fact that there was authorisation by providing facilities because the person providing those facilities met a number of the criteria in 101(1A), but still only found one authorisation which was an authorisation giving rise to a liability merely because other people used the facilities to do something, the right to do which was included in the copyright.

We would like to emphasise, if we may, how vitally important section 112E is in the current context. I doubt that either of your Honours have had the opportunity to glance at the editorial cartoon in this morning’s Sydney Morning Herald, but it rather makes the point that in our contemporary community, access to broadband Internet is a matter of great concern politically, commercially and socially.

GUMMOW J: It is all very interesting and difficult, but the question is – two questions really – to what extent was there a wrong construction placed on the section and, secondly, in any event, to what extent would you need to overcome some findings of fact even if your construction were correct?

MR MORRIS: Your Honour, the answer to the first question is, in a nutshell, that the Full Court read 112E as if it said, “A person who merely provides facilities for making”. These people did not merely provide faculties for making. They did other things. They made profits out of providing facilities for making. They put advertisements on the site. They did other things. That is not what the section says. The section says:

A person . . . who provides facilities –

that is us –

is not taken to have authorised any infringement . . . merely because another person uses the facilities so provided to do something -

So the focus of the word “merely” is not on the defendant’s conduct but on the conduct of the third party who commits the infringing act and, accordingly, when the court relied on findings of fact pertinent to the issues raised by section 101(1A), the court was misdirecting itself. That really is the answer to your Honour the presiding judge’s second question.

The findings of fact are not a problem to us because the findings of fact go to issues which simply do not arise if we are correct in our proposition that on its true construction 112E creates a situation where some act of infringement or authorisation, other than the one committed by the third party using the facilities, to do something, the right to which is included in the copyright - - -

GUMMOW J: Now, it is said that 112E was a sequel to the Telstra Case in this Court. Do we get any assistance by looking at the factual situation in Telstra?

MR MORRIS: Not particularly. The best assistance one gets is from looking at the explanatory memorandum which makes it clear, going back to the point that I was attempting to make a few moments ago, that this section was introduced to provide protection to the Internet service industry. It was inserted specifically in answer to that lobby group’s concern that with the proliferation of Internet services, a time was going to come when, whether it was Telstra or any other organisation, was going to be in the situation of having unlimited liability because ordinary subscribers were using those services to download movies and songs and other audiovisual products. That is what it is all about.

If the Full Court is correct in its interpretation, section 112E does not provide any protection at all. It provides no protection to someone who provides facilities if they provide that facility well. It provides no protection if that person makes money out of providing the facilities - - -

CALLINAN J: Mr Morris, can I ask you a question about page 142 in the application book - - -

MR MORRIS: Yes.

CALLINAN J: - - - where her Honour in the quoted paragraph sets out the finding, the inferential finding at first instance? Her Honour says, or she repeats:

Accordingly, I infer that Cooper has permitted or approved, and thereby authorised, the copyright infringement by internet users –

and so on. I think it is right to say her Honour accepts that inferential finding.

MR MORRIS: Indeed.

CALLINAN J: Do you submit that a permission or approval, assuming that that was an available inference, is an authorisation, can amount to an authorisation?

MR MORRIS: Your Honours, for the purposes of the legal argument, the special leave point we mount, we do not take issue with that. Before section 112E comes into operation, there has to be conduct which, but for that section, would constitute an authorisation. So we take that as our starting point. There is a finding - - -

CALLINAN J: But you actually say that a permissive attitude, perhaps, if I can put it that way, is enough. That can constitute an authorisation.

MR MORRIS: No, I am sorry, your Honour. I am simply saying, for the purposes of the special leave point relating to section 112E, we assume that that is correct - - -

CALLINAN J: I am asking you about antecedent point, Mr Morris, and at the moment I do not care what you say about that. I am interested in my antecedent point or what you say about it.

MR MORRIS: Yes, and we say that factually it is plainly wrong because Mr Cooper actually put on his website a disclaimer that warned people that they should - - -

CALLINAN J: You have to say that is wrong, do you not, because the whole point would be moot otherwise, would it not?

MR MORRIS: No, your Honour. With respect, we say it is wrong, but even if it is right, 112E saves us. Even if it is right, all that gets us to is the point that there is a finding that there is authorisation - - -

CALLINAN J: Anyway, you do not have a ground of appeal about that.

MR MORRIS: It is within the generality of our first ground of appeal that the evidence does not support a finding of - - -

CALLINAN J: Forgive me for saying, that is a slightly evasive answer, Mr Morris.

MR MORRIS: Yes. We do not have a ground of appeal specifically directed to that because it is ultimately a question of fact and we took the view, rightly or wrongly, that this Court would not be particularly interested in granting special leave - - -

CALLINAN J: Well, it is an inferential finding though. We are in the same – we are in no worse or better position than anybody else if it is inferential.

MR MORRIS: Certainly those factual issues would ultimately, on any appeal, have to be canvassed because - - -

CALLINAN J: You see, if you go to Justice Kenny in paragraph 170 at page 163, he seems to regard you as being under an obligation to take “reasonable steps to prevent the infringements”. It seems to go even further, does it not, than the primary judge?

MR MORRIS: Again, your Honour, that is the point we make, and perhaps I did not make it very clearly, but that is the point we make about, with respect, their Honours’ misuse of 101(1A). If I can take your Honours to that very briefly, 101(1) defines what is an infringing act. Subsection (1A) then sets out the factors or criteria to be considered in determining whether an act is an authorising act, and one of those factors in (1A)(c) is:

whether the person took any other reasonable steps to prevent or avoid the doing of the act - - -

CALLINAN J: I know that. It is only a factor. It need not necessarily be the conclusive factor in any case.

MR MORRIS: What we say, in this case, is that in any event their Honours misused that, not as a process of using it amongst the range of factors to determine whether or not there was an authorising act, but then to say, well, because those factors were fulfilled, there was not just an authorising act, there was something that was not merely the situation contemplated by 112E. So their Honours, whether factually right or wrong, in concluding that there was a failure to take reasonable steps, misused that evidence to produce the result that the present applicants do not have the benefit of 112E.

GUMMOW J: You have three grounds, have you not?

MR MORRIS: Yes.

GUMMOW J: What about the third one on page 175?

MR MORRIS: The third ground we do not wish to address orally. We confine ourselves to what is in our written submissions. May I say with the candour that I hope the Court would expect that if that were the only ground I would have to concede that there is not a special leave point.

GUMMOW J: Do you need an extension of time for this application?

MR MORRIS: I am sorry. I was not aware that we do, but apparently we do. Yes, we do need an extension of time - - -

GUMMOW J: How far out were you?

MR MORRIS: I think only a week or so. I am sorry, your Honours. I had not had that brought to my attention.

GUMMOW J: Anyhow, is an application opposed, Mr Nicholas?

MR NICHOLAS: No, your Honour.

GUMMOW J: Very well. You have that extension.

MR MORRIS: Thank you, your Honour. Those are my submissions.

GUMMOW J: Yes, Mr Nicholas.

MR NICHOLAS: We respectfully submit that no issue of general importance arises here and, in any event, on the facts of this case, and it was very much a special case given some of the findings of fact that were made and are not challenged, this case is not one that really is attended by any serious doubt in any aspects, either the first, second or if it is relevant, the third of the postulated grounds of appeal.

We submit there is no error identified in relation to the approach that has been taken by any of the judges, the first instance judge and the three judges who delivered judgments in the Full Court, all of which have approached the question of section 112E in the same manner as has been dealt with by Justice Kenny in the passage that Justice Gummow has referred to.

The position below has always been that – certainly before the Full Court – section 101, and in particular the introduction of section 101(1A), effectively codified the Moorhouse decision. We know that under Moorhouse sanctioning, countenancing or approving primary infringements coupled with an element of control to prevent those infringements occurring, is enough to sustain a finding of authorisation.

That, of course, is reflected in 101 and the criteria the court must have regard to in (1A). If there was any scope to debate that proposition it would be as to whether or not subsection (1A) still required control, as was deemed necessary under the Moorhouse test. We say that because of the presence of the words “if any” in subparagraph (a) of section (1A).

We submit that the approach that has been taken by the primary judge in the Full Court is correct and unobjectionable. There has been a faithful application of the statutory criteria in section (1A) and a careful and detailed analysis of the facts - - -

GUMMOW J: What do you say about Mr Morris’ criticisms of the application of 112E as a matter of construction?

MR NICHOLAS: Your Honours, we submit that it cannot be that because you are a provider of the relevant facilities that you are, in effect, outside of the Act insofar as authorisation is concerned and that the proper construction of the section as applied below, correctly we submit - - -

GUMMOW J: How would it work by way of an example in favour of someone who is an alleged infringer, but who can successfully rely on 112E?

MR NICHOLAS: Yes.

GUMMOW J: It is meant to have some beneficial operation for some people.

MR NICHOLAS: Yes, your Honour, and in circumstances where an Internet service provider was making available facilities which were being used for the purpose of facilitating communications which, unbeknown to the service provider, constituted infringing communications, then plainly we would say section 112E would have some work to do.

GUMMOW J: That seems to turn upon some absence of mental element.

MR NICHOLAS: In that particular example, yes, your Honour.

CALLINAN J: You say knowledge would not be enough to take somebody outside the section - - -

MR NICHOLAS: Your Honour, it may be enough. If facilities have been provided – and this is getting nearer the mark in terms of findings of fact made in this case – for the purpose of and designed to enable infringing communications to occur.

CALLINAN J: Knowledge and capacity to control.

MR NICHOLAS: Knowledge, capacity, control. We submit that plainly in those circumstances the Parliament could not be taken to have intended that there be no liability as a result of the presence of section 112E.

GUMMOW J: Section 112E, in a way, is a by-product of those rather vague words from Moorhouse and the earlier cases about sanction and approve, is it not?

MR NICHOLAS: Yes, your Honour. As the judgments in this case recognise, the question of whether or not an authorisation occurs will involve sometimes fine questions of degree and it may, in another case, not even be enough, for example, for Telstra to be taken out of the safe harbour, if I can use that expression, of section 112E, perhaps because it has reason to suspect that something short of clear knowledge that infringements are occurring. That is a case to be decided on another day potentially.

Here, in circumstances where it has been found that this site was established and maintained for the purposes of enabling these and only these activities to be engaged in, it really would involve turning the authorisation provisions on their head. We would submit to suggest that Mr Cooper is free to do that because his authorisation is occurring in a context where, amongst other things, he is providing facilities of the kind referred to in 112E. We submit that in accordance with the interpretation adopted below and purposively construed that if - - -

GUMMOW J: Now, what does that mean? What is the purpose?

MR NICHOLAS: Your Honour, the purpose, we submit, is to ensure that a service provider is not rendered liable for copyright infringement under section 101 merely because another person has used the communication facilities made available by him, but that that protection does not extend – or that guarantee may be a better way to put it – to a service provider who does more than that and, in terms of this case, actively promotes and encourages infringement of copyright by means of the facilities that have been provided.

GUMMOW J: Mr Morris referred to the fact there was some warning of some sort or exhortation.

MR NICHOLAS: Your Honour, it was common ground below, and it is recorded in the judgments of the Full Court and at first instance, that the disclaimers that my learned friend has referred to were inaccurate and fundamentally misstated the Australian law. That was a finding made by Justice Tamberlin that was not challenged before the Full Court and the Full Court when revisiting the ultimate issue of authorisation here, relied on his Honour’s finding and adopted it in relation to it. So plainly the disclaimer as held here was not one which could be said to constitute a reasonable step at all.

The particular passage I had in mind, your Honour, was Justice Kenny’s judgment at appeal book 141 in paragraph 108 where her Honour catalogues the significant findings made by the primary judge in relation to Mr Cooper’s activities. At (9) her Honour refers to the primary judge’s finding in relation to disclaimers. What the primary judge said in relation to disclaimers – this is numbered point (9)on page 142 of the book:

“The disclaimers in fact indicate Cooper’s knowledge of the existence of illegal MP3s on the internet and the likelihood that at least some of the MP3s to which the website provided hyperlinks constituted infringing copies of copyright music and sound recordings. However, no attempt was made by Cooper, when hyperlinks were submitted to the website, to take any steps to ascertain the legality of the MP3s to which the hyperlinks related or the identify of the persons submitting the MP3s.”

CALLINAN J: Mr Nicholas, could I ask you this question, and I ask it out of ignorance? The purpose of hyperlinks, do they have any purpose in addition to enabling access and downloading?

MR NICHOLAS: No, your Honour. We would not suggest they do.

CALLINAN J: It is fairly important then the fact that hyperlinks were contained. That is at the top of page 142. The finding starts on the previous page:

The website contained hyperlinks that enabled the internet user to access and download the files on the remote websites - - -

MR NICHOLAS: What Mr Cooper has done, as found, was he had put together elaborate catalogues, if I can call them that, of hyperlinks which, in effect, enabled a user or a visitor to his website, to go to a number of charts, say the Australian Top 40, which is most relevant for our purposes, and automatically download, by activating each of those hyperlinks, the whole of the Top 40 as it stood that week. One could go back and visit the site the next week and get the updated Top 40. So obviously an important fundamental finding, the fact that he - - -

CALLINAN J: He had this hyperlink that was adapted to only one purpose and that is downloading.

MR NICHOLAS: Downloading of particular material and our learned friends in their submissions, although our learned friend did not develop it orally today, and below have always sought to draw an analogy with Google and general purpose search engines, but really the analogy, with great respect, is a hopeless one. Justice Branson referred to it is as unhelpful. What Mr Cooper was doing bore no relationship to what Google does. Whether or not Google, by means of its use of hyperlinks, is potentially liable for authorisation is a question for another case, but it is not a question that could ever be explored in the context of the facts of this case in any meaningful way.

Finally, can I mention paragraph 151 of Justice Kenny’s judgment at application book 158 where her Honour notes the primary judge’s finding - this is what I was seeking to take your Honours to earlier – in these terms:

His Honour found, and it is not disputed, that the disclaimers did not accurately state the law and that Mr Cooper did not take any steps “to ascertain –

et cetera, and I will not read it all out. It was never suggested that these disclaimers were accurate and therefore, we submit, they are irrelevant for present purposes. The explanatory material has little meaningful to say about section 112E but, your Honour, section 39B is a corresponding provision that deals with works and what it said in paragraph 61 of the explanatory memorandum was this in relation to 39B:

New s. 39B is intended to encompass the provision of facilities by digital storage service providers in addition to carriers, carriage service providers and any other persons who provide facilities for making, or facilitating the making of, a communication. A corresponding section in respect of audio-visual items is provided by s.112E –

but importantly, and this is in paragraph 60 of the document –

For example, a carrier or other service provider will not be liable for having authorised a copyright infringement merely by providing the facilities by which the communication was facilitated.

That rather suggests that there is not the significance our learned friends would have to be attached to the position of “merely” in section 112E or section 39B.

In our respectful submission, no error has been identified here and the case has no realistic prospects of success and no issue of general importance arises. We submit the application should be dismissed with costs.

GUMMOW J: Yes, Mr Morris.

MR MORRIS: Just four points in reply, if I may, your Honours. The first concerns the language of section 112E. Your Honour the presiding judge asked our learned friend how it could have any operative effect if the interpretation given by the Full Court and supported by our learned friend is correct. He described it as a “safe harbour” and, on his interpretation, the safe harbour is a dry creek bed. We just cannot get into that safe harbour on his interpretation because, if you do anything that could make you guilty of authorising – you cannot be guilty of authorising unless you have some knowledge or at least reason to suspect things are going to be misused – and he says it is those very factors that disentitle you to rely on the section.

So what he says in a nutshell is no one who could ever be found guilty of authorising is ever going to be allowed to use this section. If Parliament had intended the section to say, “A person who provides facilities for making communication and so on without knowledge that they are going to be used for infringing copyright”, it could have said that, or “without reason to suspect it will be used”. Parliament could have said that. Or “without capacity to control whether it is misused”, Parliament could have said that. But, quite deliberately, the only criterion applied to the individual is whether that person provides such facilities, “a person who provides those facilities”.

The second point in reply, Mr Nicholas made a lot about the fact that Mr Cooper was found to have set up this site specifically to facilitate this sort of breach of copyright. That is true. Those are the findings in relation to Mr Cooper, but not so in relation to the other applicants, E-Talk Pty Limited and Mr Bal, who were just running an ordinary Internet service provider facility. They did not set it up to facilitate breaches of copyright.

The third point arises from the question of your Honour Justice Callinan about hyperlinks. The real point here is that hyperlinks are the absolute backbone of the network. Nothing works on the Internet without hyperlinks. If our learned friend’s case is right and the provision of hyperlinks as a means of communication does not attract the protection of section 112E, then the entire Internet grinds to a halt.

I can go on Google tonight – and my learned friend says it is an inept analogy – and look for links to paintings by Hans Heysen or recordings of violin concertos by Beethoven or whatever and use those hyperlinks to commit a breach of copyright. If our learned friend is right, Google has no protection under section 112E for facilitating that communication. Those are our submissions in response.

GUMMOW J: Mr Nicholas, what do you say about the point Mr Morris makes that whatever you say about Mr Cooper, E-Talk is another business?

MR NICHOLAS: Yes. I am grateful to your Honour for that. It is not a matter that arose in my submission in-chief. The findings of fact that were made against the Internet service provider, perhaps not as extreme as those made against Mr Cooper, were nonetheless quite significant. The key findings of the primary judge, which again are picked up by Justice Kenny in her summary at page 143, paragraph 109 - - -

GUMMOW J: As to E-Talk?

MR NICHOLAS: As to E-Talk and Mr Bal. Numbered point (4) on page 144, Mr Takoushis – he was an employee of E-Talk:

communicated with and gave assistance to Mr Cooper in maintaining and operating the site.

In other words, there is more happening here than merely providing the facilities.

Mr Takoushis visited the website and was aware of its contents and discussed the website with Mr Bal and Mr Georgiopoulos –

Mr Georgiopoulos was another employee of Mr Bal’s company –

He was aware of the probability of legal problems associated with the website before the execution of the Anton Piller orders.

Then there are some comments made specifically in relation to Mr Takoushis but they generally – while he is no longer involved in the case, they are certainly relevant to the position of his employer. At the top of the page, at about line 11:

Mr Bal visited the website –

Now, one could not visit this website without knowing what it was for, what it was designed to achieve:

Mr Bal was aware of the contents of the website and of the copyright problems that were said to arise from its operation.

GUMMOW J: Yes, all right. Thank you, Mr Nicholas.

MR NICHOLAS: If your Honour pleases.

GUMMOW J: Mr Morris, anything more?

MR MORRIS: Nothing in response, thank you, your Honour.

GUMMOW J: Having regard to the factual findings made in this case, both at first instance and confirmed in the Full Court, there are insufficient prospects of success, on the issues of law which the applicants propound, to warrant a grant of special leave. Special leave is refused with costs.

AT 4.03 PM THE MATTER WAS CONCLUDED