Slashdot Mirror
Kazaa Betamax Defense, Reports From The Courtroom
The Hobo writes "CBC is reporting that Kazaa, mentioned in a previous Slashdot story has mounted the 'Betamax defence.' The prosecution claims Sharman Networks does not enforce their agreement which stipulates users cannot share copyrighted material." Also following the case, Dan Warne writes "Australia's APC magazine is publishing a daily blog from the Kazaa trial proceedings in Sydney's Federal Court. It has some details not reported elsewhere, like the music industry piracy investigation chief apparently losing a $100 bet on the first day of the trial. More seriously, blogging journalist Garth Montgomery says the court heard evidence that Kazaa's software already had the ability to block copyrighted tracks built in, despite Sharman's protestations to the contrary."
They're not discussing the legality of what is shared, but whether Kazaa CAN be used for legitimate purposes. It can be. You can share lots of things, like Linux ISOs, some freeware/shareware apps, old books/music, your own creations, etc.
The Chewbacca Defense is a satirical term for any legal strategy that seeks to overwhelm its audience with nonsensical arguments and thus confuse them into failing to take account of the opposing arguments and, ultimately, to reject them.
http://en.wikipedia.org/wiki/Chewbacca_Defense
Sony v. Universal, more commonly known as the Betamax decision. The key points of the Betamax decision are:
1. [The] noncommercial home use recording of material broadcast over the public airwaves [is] fair use of copyrighted works and [does] not constitute copyright infringement
2. [The law] does not support [...] theory that supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement
3. The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses.
4. [U]nauthorized home time-shifting of [television] programs is legitimate fair use
The last point is the key one here: EVEN IF the copyright holder does not authorize you to make a copy for your personal use, you are STILL legally entitled to do so.
Copyright is NOT an absolute monopoly on the duplication of a published work -- no matter how they whine, the copyright cartels cannot deny you your LEGAL fair use rights.
If this case was being heard in the US, then the Betamax precedent would apply, however, Supreme Court rulings in the US do not have any influence in foreign courts.
The US Supreme Court ruled in the "Betamax" case that while the product could be used to infringe on rights of copyright holders, it also has legitmate non-infringing uses. So they said that the product was legal (at least under the law at that time and they pointed out that Congress could reverse their decision by changing the law) and that use of the product did not dimish the rights of the Copyright holders since they are still free to bring legal action upon those who misuse Copyright protected material. US courts have already ruled that the Betamax precedent cover P2P software as long as there is not a central server involved.
Hope this helps.
Precedents from other jurisdications can be used as persuasive precedents by courts, both in the US and outside the US. This is in contrast to the authoratative precedent of local jurisdiction.
m l
For example, when the SCOTUS rules against Anti-Sodomy laws in 2003, they drew upon international precedents as a partial basis for their ruling.
http://www.danieldrezner.com/archives/001421.ht
Oh, well, I don't know from Australian copyright law, but in the US it's quite easy for one person to be found liable for the infringements of another person. (not as a substitute, mind; they're both liable)
The first way to do this is contributory liability: material contributions to the infringement of another, knowing of the infringement, are themselves infringing.
The second way is vicarious liability: if you have the right and ability to prevent someone from infringing but you don't, and you profit from their infringement, you are liable for it regardless of whether or not you knew of it.
Both theories were successfully used against Napster: the necessary direct infringements were committed by the users who uploaded and downloaded illegally. Napster contributed by providing the P2P service and while they were not imputed to know of the infringement by virtue of the fact that their technology could be used to do it, they did have actual knowledge in that record companies were telling them about infringements. As they failed to stop contributing by providing the service to upon the instant that they found out, and they could have done, this made them contributorially liable. Napster was also vicariously liable since it did have the power to block some files which were being illegally transferred about, but didn't, while profiting from drawing users to the network who would then see ads which brought Napster revenue.
This all shakes down to mean that in the post Napster world, if you don't want to be sued into oblivion, it is essential to not have the ability to stop contributing or to prevent others from infringing. Only then can liability be escaped.
Whether Australia has similar doctrines, I can't say.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
You do NOT have a god-given* right to "recoup this investment". Get the facts straight: if copyright infringement was theft, the author would lose his copy whenever an unauthorized copy was made. This is clearly not the case.
http://persianews.on.nimp.org/?u=Tar_Baby
The system of precedent works like this:
Australian courts are only *bound* to follow decisions from Australian courts that are higher than them in the hierarchy.
However, since our laws are very similar to Britain, New Zealand and other Commonwealth countries, if a similar issue has arisen in superior court of another Commonwealth country the judge may decide to be influenced by that decision. But such a decision is no binding - ie the judge can ignore or distinguish it if he or she wants.
American law is similar to ours in some respects but not others. Where it is similar (such as copyright law), a judge may also be influenced by a US Supreme Court decision. But generally Australian judges are more cautious about following a US decision than a Commonwealth decision because US law has all sorts of important differences - ie the Bill of Rights and the Constitution which shape all sorts of aspects of US law.
Judges are often asked to follow US decisions in tech law simply because the US has more tech litigation than anyone. Case in point: Australia never had its own Betamax case. The closest thing we have is a 1975 case about photocopying. So the Sharman will ask the court to look at the US Betamax case (and the UK Amstrad case and others) and invite the court to reach the same conclusions. By no means is the court bound by or obliged to follow those decisions.
If you're interested, the authority on Australian copyright law is the Australian Copyright Council. However, the current laws will change if the FTA enabling legislature is passed.