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Long Awaited Kazaa Verdict Announced
September 5, 2005
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In a mixed ruling, the court dismissed allegations of breaches of trade practice legislation (fair trading), conspiracy and direct copyright infringement against Sharman, instead concentrating on the service to users provided by Kazaa.

In essence Judge Murray Wilcox acknowledged that whilst Kazaa did not directly communicate copyright works themselves, he considered that "The respondents authorized users to infringe the applicants’ copyright in their sound recordings".

The defendants reasoned that they had no control over how their technology was used, rather simplistically likening their use of the P2P network to the use of a photocopier or a tape recorder, although conveniently glossing over the fact that they profited from substantial advertising revenue as a consequence.

In his summary Judge Wilcox stated that the disclaimer exhibited to users of Kazaa was insufficient to deter users from downloading copyright material and that Sharman were fully aware of the use to which their software was being put. He considered that the respondents had done far too little to discourage such use and had instead actively promoted a campaign which attacked the record companies for their stance on copyright.

Turning to the Australian Copyright Act, Justice Wilcox deemed that Sharman, not being the owner of the copyright and without the license of the copyright owner, effectively authorized other people to commit infringing acts.

A mixed ruling in many ways, as the court stopped short of ordering the shutdown of Sharman Networks, instead ordering them to alter their software and to apply "maximum pressure" on their existing users to upgrade their software to a new filtered version.

This alteration means that filtering code will have to be incorporated to prevent the trading of copyrighted music works. Justice Wilcox acknowledged that Sharman "probably cannot totally prevent copyright infringement by users.”

Damages have yet to be assessed, although Justice Wilcox ruled that Sharman pay 90% of the record companies’ legal costs.

The record industry inevitably hails this as an unqualified success, with spokesman Michael Speck saying that “the court’s ruling confirms that people who misuse technology should not be able to profit from the creative work of others."

Rather predictably Sharman claimed that the case was a win for both sides, stating, “we will appeal those parts of the decision where we were not successful and are confident of a win on appeal."

With many Kazaa users having migrated to other P2P networks, this ruling will have limited impact for them, concerning only Kazaa itself and being confined to Australia.

This story is filed in these Slyck News categories
FastTrack :: Kazaa
Legal/Courtroom :: Court Rulings/Decisions

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