More bad news for the P2P network developers: the companies behind Kazaa, including Sharman License Holdings, have been found liable for authorising copyright infringement in Australia. The judgment was published today, and is available here (be warned: it's 131 pages long).
The case is particularly interesting for the UK because, unlike the recent US Grokster decision, the grounds on which the court found against Sharman are familiar from UK law. The judge held that the developers were liable because they "authorised" users to make copies, or to communicate works to the public, without licence or consent from the copyright owners (i.e. the record companies). Judge Wilcox summarised the three principal reasons for his finding:
- "the respondents have long known that the Kazaa system is widely used for the sharing of copyright files"
- "there are technical measures (keyword filtering and gold file flood filtering) that would enable the respondents to curtail ... the sharing of copyright files. The respondents have not taken any action to implement those measures"
- "far from taking steps that are likely effectively to curtail copyright file-sharing, Sharman Networks and Altnet have included on the Kazaa website exhortations to users to increase their file-sharing and a webpage headed 'Join the Revolution' that criticises record companies for opposing peer-to-peer .... [and] to a young audience ... the effect of this webpage would be to encourage visitors to think it 'cool' to defy the record companies by ignoring copyright restraints".
So: some familiar themes from Grokster - it's the promotion of infringing uses that gets the developers into trouble - but also new ones (and a judge using the word "cool", albeit in quotation marks). In the UK's Amstrad case - our equivalent of the US Sony Betamax case, in a way - the court found that Amstrad were not liable for authorising infringement by making available twin-deck tape recorders that were capable of infringing uses. On the other hand, in the Kazaa case, Judge Wilcox said that Sharman could be liable because it:
"was in a position ... to prevent or restrict users' access to identified copyright works; in that sense, Sharman could control users' copyright infringing activities. Sharman did not do so; with the result that the relevant applicant's copyright in each of the [recordings] ... was infringed".
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