[Ecommerce] Kazaa owners, users infringe copyright (in Oz)

[Michelle Childs]

http://www.theregister.co.uk/2005/09/05/kazaa_verdict/


Kazaa owners, users infringe copyright - judge
By Tony Smith
Published Monday 5th September 2005 13:18 GMT


Australian Federal Court Judge Murray Wilcox has ruled that Kazaa owner
Sharman Networks and its principals are guilty of copyright infringement.

Judge Wilcox declared that Sharman Networks Ltd, LEF Interactive Pty Ltd,
Altnet Inc, Brilliant Digital Entertainment Inc, Nicola Anne Hemming and
Kevin Glen Bermeister "have infringed the copyright" of the 30 or so music
labels and copyright owners who brought the case against them. Furthemore,
he said, the defendants "authorised" Australian Kazaa users to "make a
copy of the sound recordings" and to "communicate the recordings to the
public".


"The files are shared without the approval of the relevant copyright
owner," said the Judge in his summary of the case. "It follows that both
the user who makes the file available and the user who downloads a copy
infringes the owner=92s copyright."

Judge Wilcox was unmoved by Kazaa's incorporation of "warnings against the
sharing of copyright files", stating that "far from taking steps that are
likely effectively to curtail copyright file-sharing, Sharman Networks and
Altnet have included on the Kazaa website exhortations to users to
increase their file-sharing".

He also noted the defendants had not "taken any action to implement...
technical measures... that would enable the respondents to curtail =96
although probably not totally to prevent =96 the sharing of copyright
files".

The defendants were banned from offering their P2P file-sharing systems in
Australia until they modify the software essentially to exclude copyright
works from searches. The modification must come in the form of a
"non-optional key-word filtering technology", and the company must place
"maximum pressure" on existing Kazaa users to upgrade to the modified
version of the software. Sharman has a grace period of two months before
it must comply with the order.

The judge dismissed claims that the defendants had contravened Australia's
Trade Practices Act of 1974, the Fair Trading Act of 1987 and had violated
the tort of conspiracy. "The evidence does not support either the Trade
Practices Act or conspiracy claims," he said. "Those claims will be
rejected."

The judge said he plans to order the infringing defendants not to violate
the plaintiffs' copyright in future.

The judge's ruling, posted this morning, follows months of deliberation of
evidence from the music industry and Sharman networks.

The case came to public attention in February 2004, when Music Industry
Piracy Investigations (MIPI), a body affiliated to the Australian
Recording Industry Association (ARIA), raided Sharman's HQ and the
premises of related companies and their executives in pursuit of evidence
that it believed would demonstrate Sharman's culpability for the copyright
infringement being carried out via the Kazaa P2P network.

The parties spent much of 2004 arguing about the relevance of the material
seized, so the case did not come to trial until November 2004. The
evidence was heard during a series of hearings running through to March
2005. Since then, Judge Wilcox has been pondering the evidence before
announcing his verdict. =AE




--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
PO Box 19367, Washington, DC 20036, USA
Tel.:  1.202.387.8030, fax: 1.202.234.5176

Consumer Project on Technology in Geneva
1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727