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Fighting Words Exchanged Between Kazaa and the ARIA
December 6, 2005
Thomas Mennecke
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December 5th came and went. Just about everyone was expecting Sharman Networks to release a new Kazaa client that would have an updated key word filter. The key word filter contents, provided by the ARIA (Australian Recording Industry Association), would expand Kazaa's existing filter to reflect the latest in Australian pop music culture.

Yet on the stroke of midnight, December 5th, the unexpected happened. Instead of Sharman Networks releasing a new Kazaa client with 3,000 additional key words, the file-sharing company simply blocked Australian users from accessing Kazaa.com. Accompanying the blockage was a warning not to download or use Kazaa.

The exact reasoning behind this may be explained in two ways. One leading theory suggests Sharman Networks is simply technologically incapable of upgrading their software. Over the last two years as the FastTrack network fell into decline, virtually nothing was done help remedy the situation. No remedy to the FastTrack's ineffective hashing, the overabundance of corrupt files or upgrades to its network architecture.

The second reasoning, directly related to the first, could simply be blind luck (and a good legal team.) With Sharman Networks technologically stuck in neutral, the company may have little choice but to sit back and hope for the best.

As it appears that not even a court order can force Sharman Networks to upgrade Kazaa, many are wondering what exactly is happening in Sydney. In order to understand Sharman's reasoning, we have to take a step back in time to September 5th, 2005.

On that day, Judge Murray Wilcox ruled that Sharman Networks "authorized users to infringe the applicants' (ARIA's) copyright in their sound recording.” Superficially, it appeared to be an outright ARIA win. Yet further inspection reveals that Judge Murray Wilcox is very interested in allowing Sharman Networks to survive and establish a legitimate business.

In order to convert Kazaa to a legitimate marketplace for digital music distribution, Judge Wilcox set forth a series of orders. Most orders applied to Sharman Networks, yet one very important order was intended for both parties.

5. Continuation of the Kazaa Internet file-sharing system (including the provision of software programs to new users) shall not be regarded as a contravention of order 4 if that system is first modified pursuant to a protocol, to be agreed between the infringing respondents and the applicants or to be approved by the Court...

The key element of this order between the respondents (Sharman) and the applicants (ARIA) called for agreement to filter unlicensed work. Judge Wilcox stayed this order for a period of two months from September 5th to allow both sides to agree to a successful filtering resolution. The first meeting went well, and it appeared Sharman Networks and the ARIA technical crews were about to settle on the proven "Audible Magic" fingerprinting solution. Judge Wilcox further stayed the order on October 12th, and both sides were given to December 5th to resolve their differences. Unfortunately the last meeting between the two, referred to as a conclave, never took place. The ARIA lawyers pulled out of the meeting at the last moment, which infuriated Judge Wilcox.

Hence, there was no resolution to Order 5. Since the ARIA pulled out of the final meeting, Sharman Networks, perhaps serendipitously, was alleviated from having to abide by the order to filter copyrighted material (but must still work on an effective solution before their February appeal.) In an effort of good faith however, Sharman Networks did abide by Order 4, compliance of which is clearly in their control. The following is Order 4:

4. The infringing respondents be restrained, by themselves, their servants or agents, from authorising Kazaa users to do in Australia any of the infringing acts, in relation to any sound recording of which any of the applicants is the copyright owner, without the licence of the relevant copyright owner.

There is nothing Sharman Networks can do to block Kazaa users from accessing the FastTrack network. Since the ARIA didn't hold up their end of the bargain with Order 5, Sharman Networks had little incentive to keep up theirs. The next best alternative is to block Australians from trying to download Kazaa. And if Kazaa.com is the first place a potential file-sharer heads to, it’s a good bet the move will go a long way in deterring at least some infringing behavior.


This story is filed in these Slyck News categories
FastTrack :: Kazaa
Entertainment Industry :: ARIA

You can read Sharmans' press release here.

You can read the ARIA's press release here.

You can discuss this article here - 74 replies

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