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Judge Rules that Kazaa can be Sued
scubacuda writes "According to this News.com article, U.S. District Judge Stephen Wilson said a lawsuit against Sharman Networks (the makers of Kazaa) could proceed, since Kazaa software had been downloaded and used by millions of Californians. (The Australia-/Vanuatu-based company had filed a motion to dismiss the lawsuit, arguing it was not bound by U.S. laws since it did not have substantial contacts with California.)"
I wonder how long it will be until the next p2p jumps in to take their place. I'm surprised kazaa lasted as long as they did
before the California media moguls will be shipped to Iran to face beheadings for making movies and music that does not conform to the laws of Islam?
Just don't respond to the lawsuit. Ignore it. They'll lose by default, of course, but it's a civil suit. The court awards RIAA millions of dollars in damages.
But then who enforces that decision?
Feh, I'm soon to be a lawyer, but in this case, Kazaa shouldn't subject itself to the costs of defending itself in this sort of suit if they don't have the resources to make it a good fight. This is terrible legal advice, but it's good practical advice. If RIAA can't enforce a verdict, any victory they have will merely be symbolic. And it won't matter a hill of beans as far as precedent is concerned because a) there's plenty of precedent that what Kazaa is doing is wrong and b) the precedent would only have true practical effect for a Kazaa-like company based in the United States.
Now, if this were a criminal case, it would be a completely different matter, because then there would be a rigorous enforcement system in place.
But Kazaa could reasonably just ignore this suit, take the loss, and stick up their collective middle finger at it.
To blockquote the article
Wilson pthe presiding judge] said the case was different from a similar one involving a Texas man who was sued in California for distributing a DVD-descrambling utility online. The California Supreme Court said in November 2002 that Internet distribution of software did not subject someone to California jurisdiction. The U.S. Supreme Court briefly put that decision on hold, then backed out of the case this month.
Obviously there's already a case on point, so on appeal, jurisidiction will be reversed. But could somebody please tell me how this case is different?
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
The Good: I downloaded well over 2000 mp3's and 10 movies with KazaaLite
The Bad: Kazaa is going down.
The Ugly: Kazaa is spyware.
All things taken into account, hopefully the next p2p network won't have the spyware built in.
ANYWAY...I thought Kazaa was a self-supporting network, i.e. people act as super-nodes who hold a list of files for others to search, and there's no centralized server. What control does Sharman have over whether or not the Kazaa network is still around, sure, they can stop the downloads of the client, but if the client can also act as a server...meh, it's unstoppable!
Sig & Below
Yuck Fou
Not really. As much as I love Gnutella, the network is fucked up because of open sourced clients being modified in ways which are detrimental to the network (eg Morpheus setting all users as ultrapeers).
It would take time for FT to equal that, seeing as how KL seems to be the only popular alternative (not counting giFT; different network, IIRC).
It makes me wonder if Shareaza, the closed source Gnutella/Gnutella2 client, is doing the right thing by not GPLing the souce until the technology is ready to prevent rogue clients.
Damn AOL! Damn them and their buying-up-software-companies ways! (Refer to the history of Nullsoft for more on this.)
This decision by your judges has now made it possible for anyone in your country that does not like my instructions (which should be protected as Free Speech, something which your country is supposedly so proud of) to sue me. Not that I'd be responding or something but it's just stupid. I urge you all to actively do something about this aggresive act of world-domination which should even be illegal under in your constitution. You guys aren't making any friends this way.
0x or or snor perron?!
This whole P2P issue will be over when Microsoft finally creates their own P2P program and distributes it along with their OS. It would be completely distributed to the mass markets. The average joe, not just the computer geeks who uses KaZaA now. With their lawyers they'd find the perfect way to get around all these silly laws. MS also has the brainpower to re-do Gnutella correctly so that it has no centralized servers and no one can get sued. And when someone does try to sue them, and if they are forced to stop distributing the application, then they can simply open source the application. I know many of you /. people are anti-MS for your own reasons. But sometimes MS can be cool. They do have a few open source applications out there. And they try to find any way they can to dominate in every market. So often they do come out with the best software. Especially when some other company already has a working product out. They'll take the concept and improve it to perfection.
Very true... in fact there was a case a few years ago, Zippo v Zippo.com, where Zippo (the lighter company, based in PA) sued a dot.com called Zippo.com (an "information delivery" company) for trademark violations in PA court. .com claimed that they never did any physical buisiness in PA so PA shouldn't have jurisdiction. Lighter company showed they did have subscribers in PA, hence were doing business there, hence they could be sued in PA.
Same idea - jusisdiction of a court over a company that provided purely electronic product, in a different place, can be sued in a place where that product was used, even without physical presence. Difference is one is a state, the other a country.
I have blog like everyone else
Actually, this presents a fascinating question. Why the hell doesn't the RIAA "report" Kazaa to the California Attorney General with evidence of criminal wrongdoing? Why all this fiddling around in civil courts when the practical effects of a civil verdict (an injunction that will likely be ignored or avoided, a money damages award that would probably go unpaid) are so much less than criminal sanctions?
I can't decide what the RIAA and MPAA are up to. Are they just looking for exposure? Are they trying to generate some cash? Are they trying to establish civil precedents that will allow them to sue OTHER CONTENT PROVIDERS that have nothing to do with MP3 distribution and which could provide them with a much larger payoff? Are they trying to establish a chain of civil verdicts that will allow them to go to Congresscritters and "encourage" them to pass laws specifically targetting p2p?
Or are they just stupid? (In the un-troll sense. I literally mean, do they honestly think they're going to win anything substantive?)
If they wanted to get rid of Kazaa, they'd sic the criminal prosecutors on them... or are RIAA and MPAA afraid that what Kazaa is doing isn't wrong enough to be considered "criminal"?
I agree that > 95% of p2p traffic is probably illegal. And it presents an interesting dillema because ultimately that situation cannot carry on unchecked in a society.
The real shame is that the people who use p2p for the illegal things may ruin the technology for the rest of us (as governments apply draconian measures to police that space). If you think they will not you are kidding yourself.
p2p is not inherently illegal. I for one am planning on writing a distributed audio/video server so that people can listen and watch messages from my local church. The use of p2p means I have to worry a lot less about bandwidth charges as everyone can share freely.
Why is it that without visible policing most people will steal like this? If you were in a shop and nobody was looking would you really steal food and clothes and walk away? Just because you can, doesn't mean you should.
Uhm, uhm. Americans have proven before they can act very strange and explicit of it comes down to things they believe are a threat to their country or society. Like:
' Ah, you don't want to help us smoke the criminals out of their holes? '
' Fine, we have reasons to believe you hide terrorists en produces nuclear weapons! '
and:
' No sir, you can't do that, I'm an American citizen. ' in foreign countries
OK, I know not all Americans are narrow minded chauvinistic egoists.
giel.y contains 2 shift/reduce conflicts
U.S. District Judge Stephen Wilson said a lawsuit against Sharman Networks (the makers of Kazaa) could proceed.
(The Australia-/Vanuatu-based company had filed a motion to dismiss the lawsuit, arguing it was not bound by U.S. laws since it did not have substantial contacts with California.)"
Wow... Why isn't this a surprise. The Americans decide that people outside their own country are bound by their laws.
If the RIAA wants to take on Kazaa, take them on in Australia. Oh wait, no that wouldn't work, because the Australian justice system wouldn't waste their time on this.
Someone need to go let the states know that they don't own the world, yet, and until they do, companies from other countries do not lie under their jurisdiction.
Your disgust is founded in ignorance.
Anyone in a common law system (USA, Australia, UK, etc.) can sue anyone else. There are only two considerations: a) whether it can be heard in a particular court and b) whether there is anything practical to be gained by it.
Question B is not so much a question of law as a question of strategy. A court which would issue a decision can enforce its will only so far as the person losing is present within their jurisdiction (either they live there, or have assets there). People have sued the government of Iran in US federal court, and have won, and have collected their judgments out of funds belonging to Iran which are present in US banks. But if you were to sue North Korea and win (probably because nobody showed up to represent North Korea), there'd be little you could do to collect your judgment, because there wouldn't be any assets of North Korea within the jurisdiction of the court.
So, setting aside question A for a moment, the RIAA can sue Kazaa in federal court in California. The question is whether they have anything to gain by winning. As a previous poster pointed out, Kazaa could just ignore the whole thing and take a loss, if they don't have anything *in* the US that a judgment could seize. (The RIAA probably wants an injunction of some kind, but even still it's questionable how useful it would be for the US to order Kazaa not to do business here anymore.)
Question A has a lot more to do with the law, and jurisdictional questions are quite complicated. The basic idea is that you can only bring suit against someone in a place if that someone has had something substantial to do with the place. (Lives there, does business there, has assets located there, committed an act there, etc.)
The decision referred to in the headline is that the judge decided that the fact that many people had downloaded Kazaa software in California was a sufficient contact with California that Kazaa could be sued there. He reached this decision after examining the law of California. If Kazaa appeals, the court of appeals will either confirm that this is the law, or will overturn the judge and not permit him to hear the case.
In light of the above, your rant is more than a little silly. Every nation is willing to submit every person to their own laws - the only question is whether it will do the plaintiff any good, and whether the courts of that nation will let such a lawsuit go forwards. The US is no different from anyone else in this respect. "Companies from other countries" do lie under US jurisdiction, insofar as they have ever had anything to do with the United States.
All employees must wash hands before seeking equitable relief.
So, suppose that Kazaa is found liable, and no one (Vanatu, Australia, etc.) shuts down Sharman Networks. Does the RIAA/MPAA then try to regulate Internet traffic, i.e. go after ISPs that provide access to Sharman?
Oh no, not compared to Kazaa. Gnutella has never been very good at returning tons of results and is always slow to do it. The decentralized protocol just doesn't work well and it certainly doesn't scale. Napster was king and we all miss it since you could find ANYTHING on Napster. Kazaa is about the best you can get today and that'll go away. ho hum.
No
I'm sure you realize that if we all had to follow all the laws of every country on the internet whenever we used the internet, easily half the folks that post here on slashdot would be behind bars.
The fact that injustices are rare is irrellevant - what is, and should be, the issue is that such injustices happen AT ALL. One does not have to work very hard to think up a completely realistic situation where a person has been law abiding in their own region and ends up unexpectedly being held accountable for the laws in another.
File under 'M' for 'Manic ranting'
Ok here is what is going to happen.
Judge finds Kazza guilty. Judge can only dictate on terms for California.
Kazza adds clause that only non-Californian's can use this service.
Result? Whoever runs Kazza is legal because the law is only applies to Californians. Therefore anybody from Kazza can show up in California for whatever reason they want.
Would you do it? Not likely...
"You can't make a race horse of a pig"
"No," said Samuel, "but you can make very fast pig"
That are going to create the New World Order. I don't agree that California has any rights over anyone not in the state, otherwise we become subject to laws where we may never have been. However, I believe that cases like this will push for more international standardization of laws through the United Nations. You cut off this head, and another will appear. The true problem isn't Kazaa, but the byzantine practices of the recording industry. They refuse to adapt and change. Isn't it ironic that a DVD movie costs less than it's soundtrack? Movie companies are worried, but at least the business is still thiving. I hear, on the news, how the music industry sales are down 8% last year. Great! Maybe they will come up with some compelling music this year I will buy. I have a large CD collection but I also download music. The difference between what I buy and what I download? The stuff I download is not compelling enough to purchase. In fact, some stuff I have downloaded has led me to purchase stuff. When will they get it?
Enjoy your job, make lots of money, work within the law. Choose any two.
Just don't turn up. After all, if I receive a letter from Uzbekistan telling me I'm due in their courts (I'm British), there's no reason I have to accept their judgement.
That's charmingly naive, and maybe it was true once. But these days, as recent events illustrated, countries don't bother to protect their citizens very much at all from foreign governments. I fully expect that if another country wanted you extradited, the British police will fall over themselves to help. And if you're over there when you are arrested, they won't lift a finger to help you.
The answer to the question "Have websites/internet-related companies from country X to obbey laws from country Y if people from Y visit them/use their service? is a pretty hard one...
Here is a summary of four possible solutions I can see, and why they all have very serious problems:
Solution #1: Laws from the visitor's country applies to whatever he visit. It gives the legal authority stop websites providing pedophilia, incitations to racial hatred or instructions on bomb-making, even if they are located on some remote pacific island or in remote African despotisms.
Problem: As the author of the parent post points out, China can use it to shut down Free Tibet websites, Saudi Arabia any non-islamic websites, ect. In fact, strict application would basicly dstroy the web.
Solution #2: Only the laws of the country providing the website/service applies. Fine, but then we basicly agree that a Roge State can provide infos on bomb-making and that if a country legalise pedophilia, we won't do a thing to stop the website being there. True, it's always possible for western govs to try and forbid access to the website in question, but its makes it all the harder. Obviously, this works better than solution #1, but it's far from perfect.
Solution #3: No general rules, but western countries use economic/diplomatic pressure to inforce their laws. The most likely solution, this basicly means that while most things are allowed, things that westerns countries -or even just the US- condemn are effictively forbidden, since any country hosting them will face strong pressures to comply. Pedophilia, criminal or blatantly terrorist activity is stopped, under pressure by the RIAA/MPAA piracy is curbed, but things that despotic/islamic/simply non-western countries do not approve of are not. In practice, probably the best/only solution. But since this basicly impose western countries' standards on what is supposed to be an International network, it's a dangerous idea.
Solution 4: Every country is free to set its own rules, but the Internet is seperated in "country zones". Each country then decide to authorize, forbid or regulate communications with other zones. While this makes the most sense legaly IMHO, in practice it's the end of the free web. No easy choice there...
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I don't think any countries have extradition treaties for enforcing civil law. If it's a criminal offense in California then you may have a problem.
Also both countries must recognise the offense. So if the country you are in doesn't see writing software and allowing people to download it as a serious offense then you can't be legally extradited.
"An offense shall be an extraditable offense if it may be punished under the laws of both Contracting Parties by deprivation of liberty for a maximum period of more than one year or by any greater punishment." (quoted from here.)
This quote is from the US/Costa Rica agreement but I believe this is a standard clause.
KaZaa and other networks are only like first generation. They exploit the basic internetwork functionality and the Internet itself.
Here is some mail to Sherman Networks, en apropos:
The website does not have an obvious means to send general comments. The matter is press related with the news of the U.S. Courts that try to have jurisdiction in the Austrialian area. For the comment, an obvious delusion of what the global internetwork "is" exists. Such is noticed when the general user population refers to file transfers as "uploads" and "download"; yet, that technology has not been used for about ten years now. The Internet has changed the "upload" and "download" to peer to peer automatically. Kazaa is not a tool the invented peer to peer networks. The ground foundation of the Internet is purely peer to peer networks. I could say that any claim against Kazaa software that exploits file transfers and digital media copyrights is exactly the same claim that should be made to any Internet Service Provider that transfers the data itself. We do not need written laws that try to ban the file transfers or give the chance for bounty hunters to entrap users. What we need is better license validation. For example, Windows Media Player tries to find for encoded "wma" files no matter where the file was transferred from. Kazaa allows people to mirror those files. That is a step forward for digital media. I read the case studies about advertisements found via Kazaa software yet not the "popup" kind. I know why some Courts want to stop that kind of advertisement. Such is a battle between a broadband-subscription-based-oneway-feed network and the real internetwork based on pure peer to peer networks. Good luck.
http://news.google.com/news?hl=en&q=california+
Just a few weeks ago the Supreme Court reviewed the Pavlovich case to decide jurisdiction (Pavlovich posted his website in Indiana and is now a resident of Texas). The courts ruled that merely posting a website does not give California jurisdiction. The Supreme Court put a stay on that decision for a week and then let the stay expire -- reducing the chances the case would make it on appeal to the high court.
Based on the findings in this case and the Supreme Court's seeming approval, the ruling against Kazaa directly contradicts previous precedents.
This precedent of nations enforcing their laws outside their juristictions, is the fault of Israel, the US, France, Spain, Belgium & China, & is spreading, even Australia is getting in on the act. Meaning we are now expected to comply with every law of every country on the planet no matter where we are. This syndrome must stop. AFAIC the only laws that should be enforced extra-territorilly are the traditional laws of piracy on the high seas & treason.
There are many examples of this:
The US demanding the extradiction of Columbian & Burmese drug lords for acts committed while they were outside of US juristiction & thus under no compulsion to comply with US laws.
Israel prosecuting a German with Latin American citizenship for war crimes that happened in Europe against people that weren't even Israelis & weren't even nationals of that bit of the planet that ended up becoming Israel.
Belgium prosecuting a Israeli for contravening Belium warcrimes laws in Lebanon
Spain prosecuting Pinochet for acts commited against Spainards outside of Spain. The simple fact is once one becomes an expat one no longer has the protection of their country of citizenship & one must instead accept the protection of their host nation. If a expat doesn't like that they should go home. If Spain doesn't like the fact that Spainish expats in Chile were killed by the Pinochet regime then Spain should use diplomatic avenues, such as a trade embargo, to persuade Chile to prosecute Pinochete. No matter how distastefull it is, the killing of Spainards outside of Spain's juristiction is no concern of the Spainish law courts. If worse comes to the worst & the Chilian justice system refuses to do its duty, the Spanish secret service anti-ETA death squad could be resurrected to target the token Chilian bigwig & a message sent suggesting that the offsprings of Chilan bigwigs could come next.
About 5 years ago or something a freighter from some Arab country smuggled a ship load of hashish to just off Oz's 200 mile economic line where the hashish was loaded onto some waiting Oz yachts & brought ashore. Well the Feds were waiting & cought the Yachties hashed up to the nines. After the freighter unloaded its cargo it headed to New Caledonia, where Oz feds were waiting with extradition warrents. I assume the New Caledonians played along because it's dependent on Oz in many ways, plus the French habitually enforce their laws extra-territorily anyway. So the Arab seamen ended up in a Australian court where the judge promptly threw out the case. He stated that even though they were definitly smuggling hash to Oz, as they never entered Oz juristiction while they were smuggling the hash to Oz, the seamen were under no obligation to comply with Oz laws. IMAO that's a top judge.
Well recently, as in the last year or so, Australia succesfully applied for the extradition of a Yemani people smuggler from Indonesia, who they have prosecuted for breaking Australian people smuggling laws (smuggling Afghans 'n Kurds here) even though he has never been within Oz juristiction & thus IMAO has never been under any obligation to comply with Oz laws.
Now the reason I don't like these concepts is because it sets precedents that's directly responsable for China arresting tourists & business travellers from overseas & throwing them in jail, simply for Besmirching the Reputation of China in foreign publications. You see public attacks on China's reputation are illegal in China. Also under Chinese laws all Chinese are considered within Chinese juristiction no matter where they are on the planet. Ontop of which China does not recognise the right of Chinese to renounce their citizenship. Meaning if say a Chinese person becomes an American & decides he doesn't want to be a dual citizen, & renounces his Chinese citizenship, China won't recognise it & as far as they are concerned he's still Chinese (albit maybe also American too) & still must comply with Chinese laws while in the US (or anywhere else for that matter). This even goes further, if someone has Chinese ancestry (no matter how distant), China reserves the right to consider that person Chinese & thus as far as they're concerned, obliged to comply with Chinese laws, even if that person has never been to China.
This has led to many citizens of the West being arrested while in China on Businees or on holidays, for previously criticising China in western publications & particularly of late, on the web. IMAO the only way the world could stop such incidents is by an international treaty strictly regulating the limits of territorial juristiction. & no matter how much lawyers hate it, this treaty must be so clear & unambiguous that nothing is open to interpritation, no matter how inflexible it is & what the costs are in that regard. If it means people are free to kill each other on unregisted vessels in international waters, then so be it.
The only thing I'd consider is extra-territorial enviromental laws, for example where nations have the right to enforce their enviromental laws on whatever international waters are closer to them than other countries, as long as they don't descriminate in favour of their own nationals in those waters tat are outside of their 12 mile territorial or 200 mile economic zone. The world's oceans are being fished out 7 times faster than they can be replenished, this has to stop. We don't want our oceans to end up as sterile as the North Atlantic cod fisheries.
This precedent of nations enforcing their laws outside their juristictions, is the fault of Israel, the US, France, Spain, Belgium & China, & is spreading, even Australia is getting in on the act. Meaning we are now expected to comply with every law of every country on the planet no matter where we are. This syndrome must stop. AFAIC the only laws that should be enforced extra-territorilly are the traditional laws of piracy on the high seas & treason.
There are many examples of this:
The US demanding the extradiction of Columbian & Burmese drug lords for acts committed while they were outside of US juristiction & thus under no compulsion to comply with US laws.
Israel prosecuting a German with Latin American citizenship for war crimes that happened in Europe against people that weren't even Israelis & weren't even nationals of that bit of the planet that ended up becoming Israel [crwflags.com].
Belgium prosecuting a Israeli for contravening Belium warcrimes laws in Lebanon
Spain prosecuting Pinochet for acts commited against Spainards outside of Spain. The simple fact is once one becomes an expat one no longer has the protection of their country of citizenship & one must instead accept the protection of their host nation. If a expat doesn't like that they should go home. If Spain doesn't like the fact that Spainish expats in Chile were killed by the Pinochet regime then Spain should use diplomatic avenues, such as a trade embargo, to persuade Chile to prosecute Pinochete. No matter how distastefull it is, the killing of Spainards outside of Spain's juristiction is no concern of the Spainish law courts. If worse comes to the worst & the Chilian justice system refuses to do its duty, the Spanish secret service anti-ETA death squad could be resurrected to target the token Chilian bigwig & a message sent suggesting that the offsprings of Chilan bigwigs could come next.
About 5 years ago or something a freighter from some Arab country smuggled a ship load of hashish to just off Oz's 200 mile economic line where the hashish was loaded onto some waiting Oz yachts & brought ashore. Well the Feds were waiting & cought the Yachties hashed up to the nines. After the freighter unloaded its cargo it headed to New Caledonia, where Oz feds were waiting with extradition warrents. I assume the New Caledonians played along because it's dependent on Oz in many ways, plus the French habitually enforce their laws extra-territorily anyway. So the Arab seamen ended up in a Australian court where the judge promptly threw out the case. He stated that even though they were definitly smuggling hash to Oz, as they never entered Oz juristiction while they were smuggling the hash to Oz, the seamen were under no obligation to comply with Oz laws. IMAO that's a top judge.
Well recently, as in the last year or so, Australia succesfully applied for the extradition of a Yemani people smuggler from Indonesia, who they have prosecuted for breaking Australian people smuggling laws (smuggling Afghans 'n Kurds here) even though he has never been within Oz juristiction & thus IMAO has never been under any obligation to comply with Oz laws.
Now the reason I don't like these concepts is because it sets precedents that's directly responsable for China arresting tourists & business travellers from overseas & throwing them in jail, simply for Besmirching the Reputation of China in foreign publications. You see public attacks on China's reputation are illegal in China. Also under Chinese laws all Chinese are considered within Chinese juristiction no matter where they are on the planet. Ontop of which China does not recognise the right of Chinese to renounce their citizenship. Meaning if say a Chinese person becomes an American & decides he doesn't want to be a dual citizen, & renounces his Chinese citizenship, China won't recognise it & as far as they are concerned he's still Chinese (albit maybe also American too) & still must comply with Chinese laws while in the US (or anywhere else for that matter). This even goes further, if someone has Chinese ancestry (no matter how distant), China reserves the right to consider that person Chinese & thus as far as they're concerned, obliged to comply with Chinese laws, even if that person has never been to China.
This has led to many citizens of the West being arrested while in China on Businees or on holidays, for previously criticising China in western publications & particularly of late, on the web. IMAO the only way the world could stop such incidents is by an international treaty strictly regulating the limits of territorial juristiction. & no matter how much lawyers hate it, this treaty must be so clear & unambiguous that nothing is open to interpritation, no matter how inflexible it is & what the costs are in that regard. If it means people are free to kill each other on unregisted vessels in international waters, then so be it.
The only thing I'd consider is extra-territorial enviromental laws, for example where nations have the right to enforce their enviromental laws on whatever international waters are closer to them than other countries, as long as they don't descriminate in favour of their own nationals in those waters tat are outside of their 12 mile territorial or 200 mile economic zone. The world's oceans are being fished out 7 times faster than they can be replenished, this has to stop. We don't want our oceans to end up as sterile as the North Atlantic cod fisheries.