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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."
Because the copies being shared cannot legally BE shared.
The betamax defense should work for DVD ripping software and DVD-Rs/PVR devices.
Kazaa does not qualify for this kind of protection.
"Garth Montgomery says the court heard evidence that Kazaa's software already had the ability to block copyrighted tracks built in"
Really. I thought it was illegal to lie in court. Perjury I think its called. How the bleep would kazaa know which group of bits are copyrighted and which bits are not...
but it bears repeating here. The entertainment industry treats it customers like criminals, and then they wonder why they are resented. I do not pirate multimedia files. I buy what I watch, listen to, and play. While I certainly don't agree with someone saying, "Well, they treat me like a criminal, so screw em, I'm stealing it" I can understand it.
Piracy sucks. People who copy files and use them forever under the guise of "deciding if I want to buy it" are wrong. But the people who make file sharing and file copying software aren't wrong and need to be left alone.
"Wow. Now THAT'S a lot of angry Indians." - Lt. Col. George Armstrong Custer
And alternatives have nothing to do with it. It's not up to the courts to decide which way of doing things is best. All of the alternatives are just as open to copyright infringement.
Besides, no one's going to download your creations. What everyone wants is the popular crap. And that's what's traded on Kazaa.
I fail to see how that matters. Just because something *CAN* and *IS* used for something illegal does not mean that was its original intent.
No matter what Kazaa does to "stop" the piracy from going on it's going to continue because the users will always find a way around it.
Just because you have "adult protection" and it removes words that contain "adult words" does not mean that the users won't just circumvent that (like when Napster started doing it and people just went ahead and encoded full albums to MP3).
It's a transmission medium just like any other and it should be treated as such. Case closed.
At the end of the day Kazza has probably done more good work for the music industry than damage. Most of the people downloading music on kazza would be sub 24. And more often than not the music isnt of the best quality encoding.. often taking several downloads to find the righ copy. I know that all of my fellow users download the music they like then go and buy it from itunes or whatever other music service they choose. That way they are supporting the artists without having to buy a crap cd with 10 tracks you dont want for the one song you do.
In the UK its been shown that record sales are actually UP.. so what is all the waste of time about? battle of the corporate greed.
First, almost everything is copyrighted. We need new terminology, but for now saying "commercial" is better than saying "copyrighted" to describe works for which the author wants payment to allow copying of it.
Second, that the software can do it is not the whole point. There is a business infrastructure that would have to be built around the blocking feature, since someone (or a throng of someones) would have to maintain that information. The feature is worthless without maintenance. I don't think it would work even with a crew maintaining the information ala an antivirus company.
Kazaa argues that their product is just a machine like a copier, a VCR, or a knife. It only does what its user has it do. The other side says they are more like Kinko's or a publisher, with a legal responsibility to monitor what they copy.
It's obvious to me that Kazaa is just a machine, but you never know what will happen in a court room.
sigs, as if you care.
That's not true -- I use BitTorrent to download Alias episodes because I'm never home on Sunday nights. I watch them on Monday nights with my wife. That's time-shifting.
I get CTV so I *could* watch it on Sunday night, were I home.
- Michael T. Babcock (Yes, I blog)
>Kazaa's software already had the ability to block copyrighted tracks built in, despite Sharman's protestations to the contrary.
Damn, you've got to wonder how stupid Sharman really is. Did they really think they could: (1) insert "stealth" blocking, (2) sell it to the labels as a viable DRM mechanism, (3) hope the users wouldn't notice, and (4) profit?
Was Sharman paying any attention at all to the way Napster collapsed when they added their blocking 4 years ago?
And now Sharman is still stupid enough to lie about it? Don't they know that the truth always comes out in the end?
They're ignoring a fundamenal truth here: you can't play both sides of this game. The demands of the labels and the demands of the P2P community are fundamentally incompatible, and the gulf is far too wide for anyone to bridge. People who claim otherwise are just beginners who haven't gotten burned yet.
From the articke:
Lawyers for the file-swapping service Kazaa argued in an Australian court Monday that its software is analogous to the old Betamax videocassette recorders.
Lawyer Tony Meagher drew on a 1984 ruling from the U.S. Supreme Court...
Any lawyers here that can explain how a precedent from a US court has any bearing in Australia??
C - the footgun of programming languages
I don't like the trend in litigation lately. It's begging for judicial activism...asking point blank for the courts to neglect their duty to the law.
So many suits these days are not about someone doing something illegal, but rather about someone doing something you really really wish was illegal. This case is a prime example -- it's clear to anyone who's had first year Con Law that Kazaa is totally safe. But here we have some people who really wish it wasn't true, so they get their day in court and a chance, however slim, to write new law in the courts instead of the legislature.
The SCO case comes to mind, too. People get an idea of how they wish the law was, and sue based on that. Not just evil people, either: I seem to remember a recent case where a duly enacted law extending copyright protection was challenged in a court, not a legislature.
Of course, it would be easy to say that these people are just wrong, wrong, wrong for abusing the judicial system this way, but I think the problem goes a little deeper. People feel disenfranchised in the legislature. As soon as they elect someone, they're whisked away by the highest bidder and don't have to listen to you again for another few years. Once every few years isn't enough time to get your representative/senator's ear. The courts always have to listen to you, right now, and make a decision based on the merits of your case. That seems like a pretty attractive alternative.
Politicians are often said to have a social "contract" with their constituents. But we all know what verbal contracts are worth. I want it in writing next time. What are you promising me? What are you promising not to do?
And, when / if the time comes, I want to be able to sue you for specific performance.
adam b.
Very funny, but as an aside, people choosing VHS over Betamax did make sense (at least at the time). Sony would not licence the Betamax technology to any other company. JVC on the otherhand freely licensed VHS to anyone who wanted to make a player/recorder. We all know from our economics class that high supply against low demand generally results in a lower price. So consumers gobbled up the VHS players, and BetaMax players were left to those who would spend the money for the better quality. Intel learned that lesson and worked with AMD to put Cyrix out of business. Sony didn't learn it's own lesson, and MiniDiscs enjoyed little marketshare over a regular CD player.
Meh... Six of one and half a dozen of the other, perhaps.
My sentiment exactly. The MP/RIAA say they aren't worried about analog copies because of the loss of quality. You'd have to go down several generations of analog copying to get down to the "quality" level of the majority of the stuff that can be downloaded.
The supposed immorality of copyright infringement is based on a claim of financial injury, in that the owner does not recieve payment for each copy read or listened to or installed:
* The claim of financial losses or damage is mostly inaccurate because it presupposes that the copyist would otherwise have bought a copy from the publisher. That is occasionally true, but more often false; and when it is false, the claimed loss does not occur.
* The claim of loss or damage is partly misleading because the word "loss" suggests events of a very different nature--events in which something they have is taken away from them. For example, if the bookstore's stock of books were burned, or if the money in the register got torn up, that would really be a "loss." We generally agree it is wrong to do these things to other people. But when your friend avoids the need to buy a copy of a book, the bookstore and the publisher do not lose anything they had. A more fitting description would be that the bookstore and publisher get less income than they might have got. The same consequence can result if your friend decides to play bridge instead of reading a book. In a free market system, no business is entitled to cry "foul" just because a potential customer chooses not to deal with them.
* The claim is begging the question because the idea of "loss" is based on the assumption that the publisher "should have" got paid. That is based on the assumption that copyright exists and prohibits individual copying. But that is just the issue at hand: what should copyright cover? If the public decides it can share copies, then the publisher is not entitled to expect to be paid for each copy, and so cannot claim there is a "loss" when it is not. In other words, the "loss" comes from the copyright system; it is not an inherent part of copying. Copying in itself hurts no one.
-Cmdr Trollco aka GNAA Tar-baby
http://persianews.on.nimp.org/?u=Tar_Baby
I hear you - at this point Atlantis is pretty dumb.
Most shows take a couple years to get going if they're going to get going. The majority get canceled or fester (e.g. Voyager).
I'd love to be able to stop watching Atlantis for two years, and if I hear it's good, BitTorrent the first two seasons and catch up. We're talking about possibly wasting 22 hours a year on something with no future here. I've already given up on Enterprise but I hear it's better now but I have no way to catch up.
MGM and Paramount should offer torrents and (somehow) bill them (say, a buck a piece - I'd gladly pay that) with credit for Torrent bandwidth. It would be a great business model. (ob: I claim patent rights on this business model.)
So the question at hand is what rights do we have since they've chosen not to pursue this business model. Unfortunately, I think the answer is "none", if you want to play by the rules.
Ethically, MGM were being dicks. Legally, you were violating their rights, and they're obligated by [arguably stupid] law to act. Logically, you weren't costing them any revenue, but we're talking about the legal system so logic goes right out the window.
There may be some black pot oratory here, but we need to understand the rules of this equivocal game.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
Distributors of recordings (both audio & video) would probably go out of business, or at least be reduced to providing support to local and corporate-sponsored groups who wanted a large distribution of particular recorded performances. Local and/or touring, live performances (bands, theater, etc) would become more popular (and hopefully affordable) again (probably do wonders for diversity, if not quality).
The government would still have to enforce fraud laws, in case people tried to copy other people's work & pretend it was their own. (As long as they didn't pretend it was their own, then it should be okay.