Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, September 5, 2005

Australian Court Smacks Kazaa

An Australian federal court ordered Kazaa to eliminate copyrighted material from its network via filters in future versions of its software. The Federal Court of Australia found that Sharman Networks had violated Australia's intellectual property law.

Said the court, "In this case, the applicants made claims of copyright infringement, contravention of the Trade Practices Act and conspiracy. 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. The more arguable claim is infringement of the applicants’ copyright.

Before I indicate my conclusions about that claim, I wish to identify two matters that this case is not about.

First, many people (including the respondents) argue that the Internet is here to stay, it is being used by an ever increasing number of people and peer-to-peer file-sharing is one of its most valuable potential uses. They say that copyright owners, such as the present applicants, could eliminate (or at least substantially reduce) infringement of their copyrights if they were willing to make copyright works available on a licensed basis for a fee, in the way in which Altnet offers gold files. Second, it was suggested at one stage of this case that it would have been possible for the applicants to have made their compact discs less vulnerable to being ‘ripped’ into a computer program by issuing them in a digital rights managed, rather than open, format.

Neither of these matters fall for decision in this case....I return to the true issue in the case: the applicants’ copyright claim. Here again, the applicants overstated their case. It cannot be concluded, as the applicants claimed in their pleadings, that the respondents themselves engaged in communicating the applicants’ copyright works.... They did not do so. The more realistic claim is that the respondents authorised users to infringe the applicants’ copyright in their sound recordings....I have concluded that this more limited claim is established against six of the ten respondents."

Read more here in the Media Guardian and here at Read the judgment here. The Federal Court of Australia's website is available here.

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