Australian Court says Kazaa Users Breach Copyright

mferrare writes "This from Reuters UK: An Australian court ruled on Monday that users of Kazaa, a popular internet music file-swapping system, breached music copyright and ordered its owners to modify the software. The music industry told the court that Sharman Network licensed users to access a network it knew was being used for piracy and hence it was authorising people to infringe copyright"

Comments

come on now

[LiquidMind]

"...was being used for piracy and hence it was authorising people to infringe copyright."

Come on now, this is the same argument that's been going on for decades concerning VHS tapes, cassettes, CDs, DVDs, etc. Sure Kazaa has its share of illegal bits and bytes, but if you want to censore everything, might as well get rid of the internet altogether.

Re:come on now

[jozi]

I agree with you. If something is considered a tool of piracy simply because it can be used in that context then Windows itself is indeed "authorising people to infringe copyright". If the users did not have windows they would not be able to pirate and play any new games for instance. Hence windows must also be a tool to infringe piracy. Not to mention the possibility to share folders on a network with otehers.... On second thought, all operating systems should probably be outlawed.

Re:come on now

[m4dm4n]

What a great idea. We can get individual media companies to replace it.

Overheard in the near future: "Hey I just signed up with SonyNet, they format my harddrive for me once a month and decide what emails I need to read, and they got really cool movies and download speeds. What a great service!!!"

Re:come on now

[Threni]

> Rather than challenge rediculous things like that, it's the way of the
> Australian legal community to just ignore the problem.

What do you mean `legal community`? It's your job,as a voter, to change the law if you don't agree with it. I admit though that that's probably harder than making odd posts about the `legal community`...

Ouch!

[SleepyHappyDoc]

From TFA:

The music industry told the court that Sharman Network licensed users to access a network it knew was being used for piracy and hence it was authorising people to infringe copyright.

Ok, so, extending this precedent, Comcast (for example) provides access to a network (the Internet) that it knows is being used for piracy. Ergo, all ISPs are authorising people to infringe copyright. I am amazed a court actually swallowed this.

Re:Ouch!

[EiZei]

Or that CD-R manufacturers know their products are being used for copyright infringement.

Or that sports car manufacturers know their products are being used to exceed speed limits and endanger public safety..

Or that gun manufacturers know their products are being used to kill.

Re:Ouch!

[moviepig.com]

...[according to] this precedent ... all ISPs are authorising people to infringe copyright. I am amazed a court actually swallowed this.

The court could reasonably argue that Kazaa's fundamental purpose was to facilitate illegal file-sharing, rather than the legal file-sharing that comprises a minuscule fraction of its business.

And, there's ample precedent for courts to reach beyond a defense made of cynical camouflage. E.g., "piercing the corporate veil" routinely violates the so-called rights of individuals who use corporations to escape liability.

Ultimately, any legal system comes down to whether you trust your (very human) judges.

Re:Ouch!

[Tim C]

It's all about substantial use. The Internet demonstrably has substantial non-infringing uses. Also, the quality of life, ease of business, etc of tens of millions of people would be adversely affected by going after ISPs in that fashion.

For p2p apps like Kazaa it's much less clear cut. My personal experience is that the vast majority of content on such networks is infringing. Sure, there's a fair amount of stuff that isn't, but my belief (backed up by nothing more than gut feeling) is that the overwhelmnig majority shouldn't be there. Therefore your extension of the precedent is invalid, due to the nature of the use of the networks under consideration.

Note that I'm not arguing either way on the judgment itself, just pointing out the different between the Kazaa network and the Internet as a whole.

So that means...

[MosesJones]

1) The NRA defence of "guns don't kill people, people kill people" is now dead

2) Microsoft are liable for writing an OS that they KNEW would enable virus writers to propogate

3) DARPA are buggered as they built the underlying technology to DELIBERATELY enable information sharing.

I'm one of the few people who don't do illegal downloads but this really isn't an attack that work in the above cases so why does it work here?

What!?

[gravos]

Sharman Network licensed users to access a network it knew was being used for piracy and hence it was authorising people to infringe copyright What? By this logic, the manufacturer of a firearm would be held liable for any murders committed with said firearm because they knew it could be used for such a purpose. Thankfully, such cases have been struck down in the USA. This is an awful decision. If we were to hold manufacturers responsible for what people did with their products, we wouldn't have guns, knives, VCRs, computers, cameras (kiddie porn!), or even pencils. There is almost always a destructive use for any type of technology, but that doesn't mean the technology should be outlawed or it's creators punished.

Donating to freenet will not solve anything

[jurt1235]

And people on Freenet do not swap material which is under copyright?

By continuously exchanging copyrighted material via the internet, copyright law will not end. If we ant to get rid of copyright law, we should petition the goverments, protest (with your money by not spending it on the apparently for you, or in your opinion, to expensive materials), start a political party against copyrights, etc.. Freenet is just another P2P application, and since people have nothing to share except other peoples material, it will be used to do just that.

Donating to Freenet will not solve anything, it will just cause new lawsuits.
So stop complaining about these rulings, it is not your freedom they are ruling about. It is the criminal behaviour they are ruling about. If you walk into a store and steal anything, you get arrested (some call this bad luck!), and you will get some punishments. What is different here? It is not your digital right to exchange copyrighted material at all.

Re:Donating to freenet will not solve anything

[Anonymous Coward]

Donating to Freenet will not solve anything, it will just cause new lawsuits.

Since they can't know what you're downloading, on what basis can they sue you?

Re:Donating to freenet will not solve anything

[EzInKy]

By continuously exchanging copyrighted material via the internet, copyright law will not end. If we ant to get rid of copyright law, we should petition the goverments, protest (with your money by not spending it on the apparently for you, or in your opinion, to expensive materials), start a political party against copyrights, etc..


You are wrong. The best way to get rid of unjust laws is to have everyone break them so they become unenforceable.

Re:Donating to freenet will not solve anything

[file-exists-p]

If you walk into a store and steal anything, you get arrested (some call this bad luck!), and you will get some punishments. What is different here?

1/ Contrary to what happens if you steal a can of soup in a supermarket, when you download an mp3, you do not prevent anybody else from having it.

2/ To defend law in that particular case, where what is at stack is not high (we are talking about (C), not talking about people dying, or even about poor people getting poorer), the judge makes a decision which, when transposed trivially to equivalent situations, hurt some of our most fundamental rights.

3/ It's hard to understand why it's okay to borrow a book from a neighboor and not to borrow an mp3 from a guy 1000km away.

Thus, differences there are.

Cheers,

--
Go Debian!

Re:Donating to freenet will not solve anything

[Minna Kirai]

Since they can't know what you're downloading, on what basis can they sue you?

If necessary, they'll have a whole new law drawn up. Don't think they can't.

Look at the recent DMCA. The fact that it exists shows that the US Congress is happy to make laws to prevent unauthorized digital distribution of copyrighted entertainment content.

If, as you claim, there is no legal theory by which freenet can be sued, the music lobbyists simply make up a new law prohibiting contributatory anonymization.

If P2p migrates to freenet, then freenet will be outlawed.

Re:Donating to freenet will not solve anything

[mumblestheclown]

I run a small software company. The keyword here a is "small." Genuine small business with genuine employees making honest wages. After being tipped off by a customer, I looked at eMule and found that some of our software, which we sell for about 50% the price of our billion-dollar competitor, was being "shared" by 35 users.

Explain to me again where the "unjust" part of the law is.

Re:Donating to freenet will not solve anything

[Rakarth]

Partly saying "What the last guy said."
I must say I agree with him, and the comparision with lending a book is a good one, okay, there is only one hard copy of that book that is being exchanged, meaning that the author/publisher has been paod, whereas there could be any number of copies of files. But those files (say MP3s) came from original copies too...somebody bought the album and maybe converted the tracks either for personal use (I'm very protective of my CDs...some have only been used once...) or because they felt the stuff was so damn good other people might like it too.

I have often introduced friends to books, or have been introduced to books by friends which has led me to but the book even though I've read it at least once already, or else other books by the same author.
Equally so, when I have been lent CDs, often of bands who are quite unknown or whatever, I have been known to buy a copy (which is a rare thing, I hate buying CDs, they are so overpriced in this country...thankfully these underfunded bands sell their CDs at half the price of the overpriced ones, they even keep these prices when the artists hit it big (say, Damien Rice, though damn him for his B-Side extras and so on...).

Also, I do download things, such as mp3s or music videos. Generally of Japanese (but moreso, non-western artists), this is because about 5 years ago I simply gave up on the western music industry, I already have any worthy oldies and everything from underground to mainstream music was just hypocritical forms of the same crap. I had an interest in Japan and started by checking out some of it's artists...I downloaded quite a few mp3s, clips from live shows and music videos to get a good feel for the stuff, and fell in love with it. I then went to buy things by these artists, using the wonderful export site www.cdjapan.co.jp, and have now bought about $900 worth of stuff, maybe more, a lotof the stuff by the one artist in fact. I bought all I owned in originally "illegal" digital formats (though no laws existed to say that these were illegal in Europe at the time, though I believe the EU has decided to allow people to be deported, or certainly tried under US law), and more.

Now I said earlier, I am not someone who buys music, I liked music since a young age, had people buy me things as gifts and such, but in my entire life I have bought/been given a total of 4 albums and 2 singles (previous to import shopping sprees), I just felt buying music was a waste of money and overly costly (about 23 euros or more for an album, I am a student, I get about 30 euro a month for whatever wants I have, I always felt books made more worthwhile purchases).

However, because of downloading mp3s I found something that I loved and was prepared to shell out a lot of money for it, 30 second song bites would never have convinced me to get any of it. There are some artists I have yet to get hard copies of what I own, but when I have money in my hand it flies out quite quickly! Interestingly, it costs me as much to export an album (with DVD, which does up the price) all the way from Japan by EMS as to buy one in my local music shop.

The transfer of copy-righted things can result in the exchange of fair cash, not always, I'd say I'm a somewhat rare type. I know I did download some western music/rip friends' CDs, but I just deleted them...the stuff was just dreadful. But the thought that transfering mp3s takes from the industry's earnings is absolute tripe. I *never* was happy buying stuff, and the stuff I did download I would never have paid good money for. The industry is losing money (though I doubt it is), because people are disillusioned.

Also, to further go on with the comment that this started with...
If you walk into a store and steal anything, you get arrested (some call this bad luck!), and you will get some punishments. What is different here?
Have a read of (or skip to the summary if you're lazy) http://offtheshelf.nowis.com/index.c

Re:Donating to freenet will not solve anything

[jurt1235]

You might have tried this with speeding. It does not work that way. Huge protests against this kind of law might work, but just look at the basics of the law. Those basics are not unfair. The new extensions of 50 years, DRM, not able to resell your CDs legally (not law yet, just wait...) are unfair and showing to much power of the industry representing groups.

Re:Donating to freenet will not solve anything

[Richard W.M. Jones]

I run a small software company. The keyword here a is "small." Genuine small business with genuine employees making honest wages. After being tipped off by a customer, I looked at eMule and found that some of our software, which we sell for about 50% the price of our billion-dollar competitor, was being "shared" by 35 users.

I think it's unfortunate that you're sticking with a business model which requires artificial scarcity when for the last 10-15 years we've actually had a world of unlimited abundance.

Shame, but there you go.

Try releasing your code to everyone and wonderful things will happen (and you'll make a good deal of money through consultancy too, but that's only part of the fun).

Rich.

Re:Donating to freenet will not solve anything

[mumblestheclown]

Your answer is ignorant and naive.

Our software is not technically terribly innovative. I mean, it does a good job, and is user friendly, but its value is in that we as a company gather experts who put together specialist material and then we present it in a useful fashion (I dont really want to give away who we are or what we do, but maybe let's say we create specialty training materials). Releasing of our source code will do ZERO - if somebody really wanted to, they could probably make a pretty good duplicate of our code, but our real value is in the material we present and the way we present it. There are no real bugs in our software for users to kill, and because most of our users are individuals (because of the nature of the market we are in), there is no consultancy to be had.

Look, I'm really happy for you that you have this imaginary idea of how the software market should be. and, maybe there are a few small areas where a company could legitimately succeed the way you suggest (for example, MySQL). However, in this case, your suggestion has no bearing. We do NOT have an out-of-date model, and the vast majority of our customers are honest people who see the value of what we do and have no problems paying our modest fees. In fact, we are often held up in our trade press as an example of excellent value for money.

However, nevertheless, this doesn't stop some people from pirating it. There is ZERO justification for this - those people are criminals.

I'd also mention that due to the area we work in, EVERYBODY who uses our software is not poor and can easily afford it. We are not talking about word processors or web browsers here that has applicability to "up and coming" peoples of the world. Think (and this is just a silly example, but nevertheless) as if we were selling Yacht maintenance software that requires specialist understanding of yachts to put together efficiently and is of value to yacht owners only.

Re:As a record store owner,

[fuzzybunny]

Hm, a family music store owner who cusses out kids, no matter how stupid in his store. Good one.

Frankly, I haven't bought a single CD in about a year (no, I haven't downloaded anything either, I don't have the time, and my currently fairly extensive collection serves me fine on the few occasions I have a moment to listen to my tunes, like in the car on my way to clients'.)

I'm sorry to hear about your business. My mom and I have both built up small companies individually. However, we've done so in areas in which there was demand. I've done my best to keep on top of that demand, and to adapt my services to what's required; as long as I can keep doing this, life goes on.

However, if anyone was so fucking arrogant as to come up with something like a "blacklist", I would be the first to sign up for it voluntarily. As I've said, I don't pirate music; most of what's around today is too shit for me to waste time on. I've 3-4 CDs I've burned from friends, but compared to the ca. 700 I _bought_, you'll agree that these are peanuts.

As I wrote in a letter to the head of consumer relations for EMI Germany when I realized that my girlfriend had bought a copy-protected disc that took me more than 5 minutes to rip a copy of so she could listen to it in her car without scratching the original, I will not subscribe to ANY goods or services from ANY company that treats me like a potential thief instead of a customer. I'm an honest individual, I'm smart and hard-working enough to be prosperous, and that's a pretty choice customer demographic. But hey, no EMI CDs for my girlfriend (who owns several) or myself since...

However, I don't care how barefoot your children have to walk to school, if you, as someone who wants to sell me something (which you do not seem to) even hints at a threat, I will vote with my wallet. Maybe some of the 7-10 friends whom I will, as a statistically average consumer, ask to do likewise, will also avoid doing business with you. So what? You're not selling air or food or water. Maybe some of their friends will too. In fact, I've already noticed myself going to fewer movies just because the RIAA warnings and "no cameras" signs piss me off on principle. So what? There's cafes and books and girls in short skirts outside, I think I can deal.

And you know what? I don't matter. I'm just one among millions. But act like an arrogant prick instead of someone who wants to woo me for the purpose of an honest exchange, no matter how hard you're being hit by '1337 p1r8 d00dz, and you may see that the ones among millions from whom you won't see a red cent out of general principle will add up.

It's capitalism, survival of the fittest. With an attitude like that, no business has any right to exist.

Re:As a record store owner,

[Fungus King]

It's interesting to note that the parent comment went from Insightful to Troll in the time it took me to read it and click reply...

Seriously man, I feel sorry for you that your business is facing a difficult time, but a "national register of pirates" doesn't sound like the best option to me. To ban people from buying CDs would only encourage them to pirate more, wouldn't it?

I will admit that I have used P2P to obtain music in the past (although barely anymore, I prefer to buy music online first) - some of my favourite artists I discovered by P2P - if I have the money, I will by the CD, if I like it. If I don't like it, I probably won't listen again, and since I wouldn't have bought it anyway, nothing lost.

I actively encourage people to buy CDs of the artists in order to support them. Bumblefoot is my favourite artist and I went to the trouble of importing his CDs from the States (not available in the UK) after I had downloaded them with P2P. Interestingly enough, it was Bumblefoot himself who put his own music onto P2P.

You also mention Metallica - a group whose policy on piracy I can't agree with because they were putting strong pressure on Universities to permanently expel students they suspected of sharing their stuff - an action that would have serious effects on their education (duh) and quite possibly long-term effects on their career. It is quite disturbing to realise that this is the way they would have their loyal fans treated for wanting to share their music with other people.

Just so you know, I'm not advocating piracy. I'm advocating sharing music and if possible, buying the CD to support the artist. I'll tell you for nothing that "piracy" has made me a better musician, and has definitely made a difference to the possibility of me recording and distributing my own music some day.

eliminating copyright migth improve music

[Anonymous Coward]

Has anyone ever thought what eliminating recorded music copyright would do to music quality? It might actually make talent count for something as people would be really drawn to hear it live.

musicians should be paid to perform or for other real work that they do. The records that they freely distribute can be used as promos for the performances. Don't they make enough money from that?

And people with talent would actually be forced to use and perfect it and do some real work.

Overall the quality of music could really improve.

Re:EMule doesn't protect its user's anonymity

[Sanity]

That's obviously wrong because the Donkey network has a larger userbase than Kazaa.

As did BitTorrent for a while before they started to sue BitTorrent users - it takes time for them to shift their focus, but they will. If this isn't the explanation, then what is? Are you claiming that emule is somehow different to Kazaa in the ease with which users can be monitored by the RIAA? If so, please provide some evidence for this.

The inherent reason that anonymous P2P must be slow is because to make it anonymous there's heavy use of proxying, and because of this you are not only downloading the stuff you want, but also relaying unrelated data to other people.

Neither of those things necessarily mean that anonymous P2P must be slow, provided that the P2P network is designed properly. Even early versions of Freenet could support download speeds of over 90kbytes/sec, which is comparable to what can be achieved with modern non-anonymous P2P networks today.

Re:As a record store owner,

[Moggie68]

Another reason for why people don't buy CD's from stores is the pitiful quality of music available there. All they sell is the garbage the music industry churns out. Loads of cookiecutter "bands" and "artists" who have never written an original word or note. Add to that outrageous prices (because of the huge cut record companies take on each and every CD) and it's a small wonder business is slow. Back in the 80's when Compact Disc technology was introduced, the huge price hike was being defended with "the price will fall when the technology propagates". Now, after a quarter of a century, CD prices have not decreased once. Instead, they have been outrunning inflation 3:1 (conservative estimate). Record companies have dug themselves into a hole with raging profiteering and expect the courts to bail them out.

Re:As a record store owner,

[SilverspurG]

When I was younger, it was kind of a thing to do. Go and spend an hour or two meandering around the CD store looking through racks and racks and racks of CDs. In today's world I can't prioritize that kind of time to browsing through music. In the last year I've bought about 10 CDs and it took me less than an hour over the course of the whole year to do it.

I've only gotten one album from the 'net, and it wasn't from an automated file-sharing network. It was from an acquaintence who frequents many of the same music forums that I do. It was Maxim's Hell's Kitchen album. I've since purchased the actual CD, and Maxim's second album "Fallen Angel", as a result of it.

What about the rest of the internet

[fireman sam]

I can use an ftp client to get illegal software.
I can use a browser to get cracks for software.

This just in:

The following software can be used to access copyrighted works:

Mozilla Browser Suite
Firefox
Internet Explorer
Opera
Lynx
Links
www
wget
curl
ftp
cuteftp
wsftp
gftp

(This is not an exaustive list)

ARIA (Australian Recording Industry Association) and the AFI (Australian Film Industry) has called for a ban on the above mentioned list, and any other softwares that allow access to the FTP or WWW networks.

I know this point has been made before...

[userlain]

The RIAA and MPAA are suing people because profits are down. Profits are down because the music industry and the motion-picture industry are producing crap, not because people download cds and movies.