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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."
Then it's on to plan B... The Chewbacca Defense.
But Speck's hundo was the smallest coin exchanged on this day. With 5 legal teams in total, the amount being spent is inconceivable. Some QCs are on as much as $10000 a day and Dispatch hears that Bannon alone is on $6000 a day, but his performance is said to be worth it.
If only the MPAA would realize how worthwhile this could be for them! They could take these "actors" who are charging such low rates as $6000 a day and use a prewritten, sensationalist script already available in electronic form, and go ahead and produce this "movie" for everyone to see.
It's already funny, full of fictionalized reality, and cheap! They can take it right now off of the Internet and reproduce it for their own personal use! People might actually go and see this remake. It would certainly be better than the recent remake of Walking Tall with The Rock. I'm sure he charges more than $6000 a day to carry around a huge cedar 4x6 in the bed of a pickup truck.
Just a thought.
You mean they're claiming that it doesn't matter 'cos they'll lose the format war to an inferior product?
"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...
No.
Only old people USE betamax.
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.
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
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.
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
I prefer the Betamax Player defense; it involves indefinitely hitting the *AA over their arrogant heads with an industrial Betamax Player
... must ... resist ... urge to make an "In Korea" joke ...
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.
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.
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.
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.
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.
Babelfish link anyone? I can't figure out what a "spiv" is, QC versus SC (something counsel?), etc. The only Australian I know I learned from Foster's commercials...
You're buying into their version of what Copyright means.
Remember that in some countries (like Canada) where their software is used, making private copies of someone else's music is also legal, as long as its for private purposes.
The music and movie industries both made much better money in the recent recession in the US than most other industries. Their claims about losing billions of dollars are fatnastic -- that is, rooted in a (drug-induced?) fantasy.
Where are those billions of dollars? Economies don't invent money. Someone would have had to spend that money for it to be "lost" potential revenue. They're not losing "real" money, they're losing potential money from sales they didn't get. If the economy can't sustain that level of sales, then they didn't lose the money.
- Michael T. Babcock (Yes, I blog)
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.
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
Exactly, they can make the points in principle and it's so simple even a record company exec can understand it. This is where P2P should win hands down. It's not the medium that's the problem, it's the infringement. Guns don't kill people, Kazaa doesn't infringe on copyrights, people do.
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.
the fact that other methods exist doesn't invalidate this one. if everybody happened to be using ratio-based FTP servers (like they were back in the day) to trade mp3s, you wouldn't argue that FTP servers should be banned because "you can trade legit files other ways", would you?
the tool exists completely seperately from its uses. unless you want to make the provider of a tool responsible for the users' uses, you can't really argue that any given tool should be banned.
if kazaa was banned, it's not as though illegal filesharing would stop. it would simply move to another tool. do we then ban that tool?
the argument of the prosecution in this case is that kazaa is a service, not a tool, and therefore the responsibility of the provider when used by a user/customer. if you don't argue that, then you have no grounds on which to blame the provider of the tool.
Aren't you the enemy of your enemy?
My beliefs do not require that you agree with them.
First of all, there are resonably rational arguments for legalizing heroin - the most important being that use only directly affects the person who chose to take it. Indirect results affect everyone, but you can only reasonably regulate certain activity.
And in the larger argument - in a free society, you don't need a reason to make something legal. you need a reason to make it illegal. So logn as there are substantial non-infringign uses, the arugment to make it illegal is weakened. By doing so, you'd infringe on the rights of SOME people (even if they're in the minority) inperfectly benign, otherwise legitimate activities.
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.
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.
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.
The question is not whether unauthorized distribution of copyrighted works is illegal. The question is whether Kazaa, because it is often used as a vector for said distribution, is illegal. Which is the same question as whether VHS being used to make illegal copies makes VHS illegal, or if playing copyrighted songs over the phone makes your phone illegal, or if bashing someone's head in with a crowbar makes crowbars illegal: NO, because some thing being used for an illegal purpose does not make that thing illegal in all other cases.
You're saying that unauthorized copying is illegal, which nobody disagrees with because it's what the law says. What the ??AA is doing is extending that to say that therefore having the capacity to make unauthorized copies is also illegal. This is crazy-stupid, but it gets play time because the ??AA has the $$$$.
The enemies of Democracy are
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.