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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."
The betamax defense basically argues that just because a product CAN be used for infringing uses, it doesn't mean it WILL always be, or that the tool should be outlawed. The American court system, for instance, found betamax had substantial non-infringing uses, so the technology couldn't be banned.
The same holds true of Kazaa. It's certainly possible for me to distribute my resume, my own recorded music or artwork, live band recordings (provided the artist gives the OK), or other freely distributable materials through Kazaa. It just provides the peer-to-peer connection -- just like any other internet technology. E-mail lets me send files, copywritten and protected or otherwise, to other users. Newsgroups let me do the same thing. So does having a Web site. So do most IM clients. Kazaa makes it easier to distribute media en masse (or at least to find it) but its not inherently different than any other technology that lets you move bits from one place to another.
The only real difference is that the popular culture around P2P is dominated by illicit use. But the technology itself can't be blamed for that.
If anything, the *AA could argue Kazaa's business model and marketing strategy are dependent on that illicit use and promote it, but that wouldn't be an argument against the technology itself, just the business. And even so, that's a hard argument to make. I'm reasonably sure Shaman has "don't be a criminal" type warnings all over its software, site and promotional materials.
There are tons of documents in the public domain, or which have been released under licence which allows them to be freely redistributed. And of course there are documents that cannot legally be shared. The point of the betamax case is that the manufacture is not liable for crimes and offenses which the users commit. This is no different frome the betamax case where there were also both legal and illegal uses of the product.
Funny historic fact, Kazaa (the software) "fled the country" to avoid these lawsuits.
In the early days of Kazaa its authors sold it to sherman networks in australia the moment their legal problems got to hot. I recall one of its authors mentioned that he expected to get either get very rich or end up in jail "real soon" in an interview. Quite the imagination considdering it was a civil lawsuit with the recording business bully he was dealing with. Ofcourse the spyware could get him rich... or in jail, as people could think of it as cracking personal computers ;-)
They sold for a ridiculous low figure. Afterwards they won in appeal.
So for everyone in legal trouble with big business out there, not all judges will rule against the smallest purse. It may take time money an patience to get them to understand the issue though.
I think the major difference really lies in the fidelity of copies. No one worries about you recording movies on TV because the tape wears out and the verison you're getting is often crippled with commercials, pan-and-scan cutting, formatted-to-fit-available-time cuts, broadcast logos... and if you're making copies of copies (essentially what Kazaa winds up being), you're losing a bit of quality each time. Look at the fansub community and their talks of "first-generation" and "second-generation" copies. In fact, it's one of the bones of contention in that community, as regards digital fansubbing, as the old tape method ensured that the fansubs had a limitted lifespan and that if/when an official version came out, the average fan would jump at the chance to get a full and valid copy.
That said, Kazaa sort of has this... while there are occasionally full movies, games, and such, in general, the movies have glitches, bad compression rates, advertisements by the people who ripped the movie. The games are often missing music, sound, and movie resources or, again, have lossy compression used for resource files. Meh... Six of one and half a dozen of the other, perhaps.
This sig has absolutely no significance and serves only to take up screen space and waste the time of the reader.
"(even more wrong since there is nothing that says company can't charge through the nose for their product)"
True, but their is a law that says when manufactures get together and agree to keep the price of a product artificially high so that all can profit that this is a cartel and they are participating in "price fixing" which is very much illegal. The funny thing is that when the music industry got nailed for this there was very little media coverage. This whole file sharing debacle serves them right for screwing both the artists and the consumers. IMHO.
I created something. I want to keep it private, or limit distribution. I invested my time and possibly my money - I want to recoup this investment. Someone out there likes my idea - my work - but they do not want to pay for it. I should be able to have my work protected from people like that.
None of that supports a claim of immorality as to infringement. You're just saying that you are greedy and want to be paid, and other people are greedy and don't want to pay, and therefore their greed is not merely distinguishable from your greed, but that they're outright immoral.
Seems like the pot calling the kettle black to me.
Let me put it in another way - -- you go to work everyday (i presume) - would you appreciate it if your boss said "you are not getting paid for your work"?
No, but this is different. Labor is not the same thing as the fruit of labor. Since no one is compelling artists to create things, their labor is not being forced, which would be morally wrong. On the other hand, waiting for artists to expend labor, and then sharing in the reward of that labor doesn't force anything.
Furthermore, we can demonstrate that while some fruits of labor are worthy of protection, not all are. E.g. if I plant a lot of plants, I cannot charge people for breathing the oxygen that my plants produce, nor for enjoying the nice view. (I might block off other people's access to that by erecting a wall or something, but this transforms the fruit being charged for into granting access to this, since if the growing itself were enough, the wall wouldn't matter)
Copyright infringement is stealing someone elses work - it may not be tangeable like a car - but that should not demean its value.
Well, work is never tangible. It's intangible. Hell, it's a verb, not a noun, as far as we're concerned. This is important.
Or do you believe taking something that does not belong to you as morally correct?
If it does not belong to anyone, and it is not a taking in that no one else is deprived of the thing in question, then I think that it is not morally incorrect. It is amoral. I won't go so far as to say that copyright infringement is moral either. Don't impose a simpleminded dichotomy here.
I think that we might create some control over these things arbitrarily if it seems like a good idea, but that doesn't elevate or depress the issue into a good/evil sort of thing. It's still amoral, as I see it. Just like how it's no sin to jaywalk or trivially violate building ordinances, even though those things aren't legal either.
-- 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.
i wasn't making myself clear--
you can't look at "the network" (the protocol and application that facilitates transfer) and assign blame for content any more than you can do so for ftp. why not, you might ask?
simply because the creators of the protocol and application are not legally responsible for what people do with it.
the kazaa application and protocol (not CONTENT) have just as much non-infringing potential use as ftp, and ftp has just as much -infringing- potential use as kazaa. there is nothing about the application and protocol that makes it more open to infringement... rather it's easier to use, so those who are more likely to infringe are more likely to use it than ftp.
if push came to shove, and kazaa was banned (along with various other similar P2P apps), there is no doubt in my mind FTP servers would pop up that would run rampant with mp3 and divx piracy.
would you support banning ftp then?
and what do you ban after that? IRC? http?
there is nothing about the kazaa application and protocol that inherently lends itself to piracy any more than those other protocols. the application lends itself to widespread USE by those who would pirate simply by being easy to use, but the last time I checked, easy to use was not a bad thing from a legal perspective.
Do you believe that it is morally correct to use the law to force people to pay you over and over for something that you should've been paid only once for?
It's a case by case basis. If I create a program - say Half Life. I sell the right to use it. Now I create Half Life expansion pack. If I want to- I have the right to sell it to you.
If I create a program (say finance software) and the terms require you to pay me a monthly fee - if you do not like these terms do not buy it. But just because you are not happy with the terms of a company does not give oyu the right to get the product without paying them. The law is there to protect people - and the law says that if the makers want to charge you through the nose - they can do it...the law is not forcing you to buy the product, they are just saying - that if you want to buy it - you better agree to the terms of the contract or else you will suffer some consequences....I wonder - do you follow or ignore contracts? It seems that if you do not like a contract you probably don't follow it - unless there is some recourse. I bet you if there was a 100% chance of reprisal from you stealing someones program you would not do it. Just admit it - you love the anonymity of the Internet and the freedom it gives. Do not preach some moral high ground. In the end you are utilizing something that is not intended for you unless you pay the fee.
While I agree that the RIAA and MPAA price fix and price gouge - I also agree that it is their choice to do so...they made the product - they can decide on the price.
I mod down so you can mod up. Your welcome.
IANAL, but I have a friend who's a law student, and at some point in the past I asked him about this. Apparently Australian courts are open to the possibility of using precedent from other Common Law courts when there's nothing applicable in Australian courts. I imagine that's especially true in today's climate of harmonisation of laws between nations.
:)
I think an example of this is that Australian courts have used various rules set in American courts with regards to software patents.
We might be an independent country, but that doesn't mean we can't shop around for court decisions when they haven't been made here. Alternatively, we're an indepedent country, but if we only look at British law we don't look independent, so we have to look at others with similar setups to our own
Look out!