Case: Sony Entertainment v Smith

This judgment sets out the Federal Court's decisions on damages in a case concerning copyright infringement by Sydney DJs and a record company. The defendants had reproduced  a number of sound recordings on compilation CDs without permission.

The Court awarded damages for conversion under s 116 of the Copyright Act, considering that relief under s 115 of the Act was insufficient. The amount awarded reflected the proportion of the infringing tracks to the entire number of tracks on the CD, doubled to compensate for the fact that it was impossible to sever the infringing material from non-infringing material on the same CD.  The amount to be paid was left to be calculated by the parties.

The Court also awarded additional damages for flagrancy, noting that the respondents had not apologised for their actions, had shown “utter contempt” for the proceedings and had failed to comply with Court orders. Further, one

of the respondents had made threats against the applicants. Smith, a DJ and the person who had made the threats, was ordered to pay $300,000 in additional damages. Tower, the recording company that produced the CDs, was ordered to pay $150,000 in additional damages. Peewee Ferris, a DJ, was ordered to pay $50,000 in additional damages.

The Court awarded a lump sum assessment of costs, because of the conduct of the respondents thus far in the proceedings, which indicated that they would be unlikely to attend a taxation hearing, or to assist in making proceedings as expeditious as possible. The amount awarded for costs was almost $206,000, 40% of the amount sought by the applicants, to be apportioned between the respondents.

Sony Entertainment (Australia) Limited v Smith [2005] FCA 228 (11 March 2005)