James Delahunty
25 Nov 2005 7:55
An Australian court has ordered that Kazaa must implement filters to block the sharing of copyrighted music by December 5th or to shut down the service. This deadline comes after September's ruling by the Australian court that Kazaa users had broken the law and Sharman Networks needed to find a way to block future copyright infringement on the network. "It's time for services like Kazaa to move on -- to filter, go legal or make way for others who are trying to build a digital music business the correct and legal way," IFPI Chairman John Kennedy said in a statement.
All of this kicked off when Sharman's offices were raided on 6th February, 2004 by the anti-piracy subsidiary of the Australian Recording Industry Association (ARIA), called Music Industry Piracy Investigations (MIPI). Raids were launched after an Australian court granted MIPI a search warrant, so-called Anton Pillar order, that allows copyright owners to search premises to find evidence of alleged copyright violations. Sharman condemned the raids, calling them illegal.
Sharman said the Anton Pillar order that allowed the raids to take place "was not granted based on all the facts." Sharman's complaint was then heard in March (the MIPI was not allowed to access seized documents until the decision) but the court sided with the recording industry and rejected Sharman's claims that the raids were made without valid reasons. One week later on March 11th, Sharman appealed the ruling.
On July 3rd, 2004, a date was finally set for the Kazaa vs. MIPI trial (November 29th, 2004) and Judge Murray Wilcox dismissed several claims raised by Sharman Networks regarding access to the evidence seized by MIPI in the raids. On October 8th, 2004, Wilcox' view was backed up by an appeals court that once again sided with the recording industry and rejected Sharman's claims. Then in November, everyone prepared for the case to begin.
The Kazaa trial began with a massive piracy claim by the MIPI who said that Kazaa was the world's biggest piracy network. "Sharman paints themselves as the defenders of the interests of fans of music [but] they are trading off the copyright-infringing activities of its users. Far from inhibiting infringements, they are actually encouraging them." said Tony Bannon, counsel for the labels. In day 2 of the trial, Tony Meagher, a lawyer for Sharman denied the claims the Recording Industry.
Tony Bannon decided to hit back at Kazaa's defense of the accusations by telling the court how, earlier a commitment was made by Sharman Networks to rid Kazaa of Child Pornography. He then made the argument that if Child Pornography could be properly filtered out, then why cant pirated MP3 files be filtered out? And why has Sharman made no such promises to the recording industry? You can argue that the real reason Child Porn was brought up was an attempt by the MIPI to make Kazaa look a lot worse than it already did in court.
Then witnesses claimed that despite the claims of Sharman Networks, Kazaa can be properly filtered. In an interesting challenge then, a lawyer for Sharman Networks, Mark Lemming, accused University of Melbourne professor Leon Sterling of switching sides. He claimed that Sterling had offered to be an expert witness for Sharman Networks, but later emailed them withdrawing the offer, saying that writing a report requested by Sharman would be "stretching his expertise."
The trial continued, getting even more controversial when the Red Cross was caught up in the mess. The Recording Industry requested that the Red Cross freeze a trust fund allegedly controlled by the owners of Sharman Networks. "It would be incredibly disappointing if we had to sue them," said Michael Speck of the MIPI. However, the Red Cross later denied any link with a trust fund controlled by Sharman Networks.
In probably the killer of Sharman's defense, documents were shown that proved that Sharman had a lot more control over the Kazaa software than it had claimed. It had ability to even log user activity and logs of discussions showed that Sharman was aware of possible legal difficulties and privacy issues surrounding logging. Closing arguments were heard in the trial, in which Sharman claimed it should not be held responsible for the actions of third parties.
In September 2005, Kazaa was ordered by the court to implement filters to block the sharing of copyrighted material. It also had to pay 90% of the recording companies' legal costs and damages which have not yet been determined. According to the courts ruling Kazaa, its owners and executives had knowingly allowed Kazaa users to illegally swap copyrighted songs. The court found the defendants guilty of copyright infringement even though the infringements were carried out by Kazaa users.
Whether you love or hate Kazaa, decisions like these are bad for P2P services everywhere. It is unfortunate that because of Sharman's business practices, other file sharing cases across the world will have this precedence. It is now time to sit back and see what happens with Kazaa.
UPDATE: It has now emerged that the deadline has been extended to late February.
Source:
Reuters