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September 5, 2005
Australian Court on KaZaA - Stop: Napster Time
An Australian federal court has ruled that the Sharman companies responsible for the filesharing software KaZaA "authorized," and are therefore liable for, copyright infringement by the people who use the software. Further, the court has ordered Sharman to modify the software to help prevent infringement. And that means copyright holders will be involved on an ongoing basis, providing lists of material to be filtered from searches.
Australian copyright expert Kim Weatherall has extensive analysis. Writes Weatherall:
Given the experience over in the US in the Napster litigation, where similar attempts by a trial judge led to much ongoing disputation about the form of orders that only went away when the litigation collapsed under its own weight, I'm surprised that any judge would want to get into this.
In my view, it was always going to be the case that Kazaa itself went down, on the kinds of facts that we see in this case. What I was hoping was that the judge would find a way to frame a rule so that it caught 'bad actors' without generally chilling innovation.
The court has not done that. The court has caught the bad actor but provided no guidelines for the good actor.
In splitting the baby, and trying to get into technological design, I fear that the judge has let himself in for a helluva fight. And it's not like he didn't know that: he saw the litigation as it went on. I fear the dramas will continue as parties fight over orders. We are back in Napster territory again.
One quote from the decision that's making the rounds in many a mainstream media piece
"It seems that Kazaa users are predominately young people, the effect of [Kazaa's] web page [with the slogan, 'Join the Revolution'] would be to encourage visitors to think it 'cool' to defy the record companies by ignoring constraints."
In other words, it's not cool to make copyright infringement sound cool.
KaZaA has announced that it will appeal the ruling.
Update (September 8): The discussion continues @ Madisonian Theory, Freedom to Tinker, and (of course) Weatherall's Law.
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