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Kazaa’s Zero Hour Approaches
November 4, 2005
Thomas Mennecke
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Like its American counterparts, the ARIA (Australian Recording Industry Association) has been in a lengthy fight against file-sharing. Seemingly more reluctant to pursue individual file-traders, the ARIA has instead targeted just one P2P firm – Australian based Sharman Networks.

Sharman Networks is the company behind the still popular Kazaa P2P client. Although its popularity has waned from its 4.5 million simultaneous user peak in mid-2003, it has managed to stabilize at approximately 2.8 million users. Even in a deteriorated state, the music industry feels it still presents a sizable risk to their business model.

In February of 2004, the MIPI (Music Industry Piracy Investigations, the enforcement arm of the ARIA) raided the offices of the Sharman Networks and Brilliant Digital, along with the homes of CEO Nikki Hemming and CTO Phil Morle. Executed under the “Anton Pillar” order, the ARIA was looking for evidence to use against Sharman Networks; thus igniting its own lawsuit campaign against the company.

While the trial would not begin until November of 2004, the entire episode was a nearly two year long process. The final decision would not be rendered by Judge Murray Wilcox until September 5, 2005.

In the decision, Judge Wilcox immediately dismissed the applicant's (those represented by the ARIA) claims of contravention of the Trade Practices Act and conspiracy. According to Judge Wilcox, “It is convenient to say immediately that the evidence does not support either the Trade Practices Act or conspiracy claims. Those claims will be rejected.”

Judge Wilcox did find however, Sharman Networks was in violation of Section 101 of the Australian Copyright Act. …Copyright is infringed by a person who, not being the owner of the copyright and without the licence of the copyright owner, authorises another person to do in Australia an infringing act.

Judge Wilcox surmised that Sharman Networks took largely anemic steps in its attempt to thwart piracy on its network. Judge Wilcox also found that Sharman Networks used subversive methods to increase its population at the expense of the music label’s profit margin. This method included the clever PR campaign called the “Kazaa Revolution”, where users were encouraged to “Join the Revolution.” Although not explicitly encouraging copyright infringement, it sits as well as billboard of Joe Camel in a middle school parking lot.

Perhaps the one point that stuck most with Judge Wilcox was Sharman’s non-attempt to block or filter copyrighted material. Not looking to destroy Sharman Networks as a company, Judge Wilcox ordered 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.

In order to achieve this, Judge Wilcox further ordered that Sharman Networks must block all copyrighted files from being indexed by the Kazaa client. According to Judge Wilcox, …all new users of the Kazaa file-sharing system contains non-optional key-word filter technology that excludes from the displayed blue file search results all works identified… In addition, it was ordered that “maximum pressure” must be placed on current Kazaa users to upgrade to the new client via pop up messages and through the homepage.

This ruling was issued on September 5, 2005. Judge Wilcox stayed his ruling for a period of two months, allowing Sharman enough time to comply. Judge Wilcox's ruling provided a two way street for the music labels and Sharman Networks to coexist. The music labels would continuously feed Sharman with titles of copyrighted titles, and Sharman would block them in Kazaa.

At the time of this writing, the sun is rising in Sydney on the fifth day of November - exactly two months since the issuance of this ruling.

So far, there has been no indication whether Sharman Networks has, will, or is in the process of complying with this order. Slyck’s inquiries to Sharman Networks revealed no information pertaining to this deadline is currently releasable. Additional inquiries to the ARIA revealed that further information may be available on Monday.

Regardless, one way or another something big is about to happen. While many scoff at the FastTrack network and what it represents, it still contains nearly three million simultaneous individuals and perhaps on the upwards of 50-100 million total users. Many recall the events and chaos surrounding the collapse of WinMX on September 21 – and that was from a population no greater than a half million.

If a similar event were to erupt on Kazaa, this time in the form of blocked search results, multiply the WinMX fiasco by a factor of six.

This story is filed in these Slyck News categories
FastTrack :: Kazaa
Legal/Courtroom :: Developer Lawsuits

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