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Kazaa Appeal Likely In 2006
daria42 writes "Although the company behind Kazaa has already vowed to launch an appeal of yesterday's decision that it had breached music industry copyright, it now appears likely any such appeal will have to wait until early 2006. The music industry seems to think it'll be able to get billions of dollars in damages out of the company, Sharman Networks, although the amount has yet to be decided - and who knows if they can pay." From the article: "Sharman Networks is expected to lodge its request for leave to appeal before the deadline of three weeks from yesterday's decision expires. Sharman's lawyer, Mary Still, reiterated through a spokesperson today the company's position last night that it would 'appeal those parts of the decision where we were not successful' remained unchanged."
"The music industry seems to think it'll be able to get billions of dollars in damages out of the company, Sharman Networks"
http://en.wikipedia.org/wiki/Nikki_Hemming
The way I understand Sharman Network is setup, is that if Sharman Network looses kazza, it loses it's advertising base, therefore it's not worth anything. Then RIAA won't get money, but only shut down a skelton company that has no real product or base.
Freedom of Speech only include discussion that are approved by the RIAA, MPAA and DMCA.
Generally speaking, appeals do not involve any new facts. They are a review of legal rulings [for example, whether a piece of evidence is admissible] of the judge, and not a review of the factual findings of the jury.
(As an aside, a judge is the fact finder in a bench trial)
Despite Garth's unusual, semi-gonzo writing style, it seems obvious to me that the Sharman defence was a pitiful joke. Nobody knows what the software does, nobody knows how it does it, nobody is responsible for it, nobody is the boss, everybody is a peon.
Basically they didn't have a solid set of arguments to support their behaviour. They were profiting from copyright infringement, even if they did not do the copying themselves.
A judge has ruled against you. DEAL WITH IT
;-).
Go read the judgement. Plenty of links below. The judge did not rule against Sharman/Kazaa on three claims relating to Fair Trading, Trade Practices, and conspiracy. He dismissed claims against the two Technical Officers (I suspect from his wording he had some sympathy for them as they came across in court a bit dimwitted
One outstanding item that is not being shouted from the rooftops is that Sharman and all users can carry on using Kazaa, so long as within 2 months it is cleaned up to allow only licensed copies (probably with DRM but this is not specified) to be shared. Justice Wilcox quickly got to grips with the two tiered search results Kazaa offered users, and deduced that Sharman needed a big swag of pirated stuff out there, so that the "Gold" hits, or licenced material, would increase in proportion and so boost Sharman's income. He's been jolly decent in giving them 60 days to get their house in order, but don't hold your breath.
Of equal significance is that this case was only to establish facts. Justice Wilcox made it clear from the start he was not interested in determining losses by any party due to actions of any other party. He has in accordance with long established practice awarded 90% of the applicants' (BMG et al) legal bill for the case against Sharman. But the billions being parlayed about are for another case, where Big Music will have to establish, factually to satisfy a Judge, precisely how many dollars and cents they are down, and precisely how much of that is directly attributable to Sharman/Kazaa. That IMHO is not going to be a walkover.
Comparisons are being made here to Grokster, but Wilkox J read Grokster and declared that he found it not relevant. The difference here is that Kazaa is a two layered structure. Sharman needed the pirates to keep the quasi-legal stuff afloat. Wilkox did not accept their plea that they did not know how much piracy was happening and could not control it. But he has accepted that Kazaa could be run as a legal (DRMed if necessary) service. And he's given them the opportunity to do that.
Check out the commentary from Kim Weatherall (expert in Australian IP law and lecturer at Melbourne University).
The KaZaA operators were held to have authorised copyright infringement. If you don't market your FTP client as "zomg download free music here!!1" and ship it with a list of anonymous music servers, you'll probably be right.
This is his summary from the ruling:
As for the billions and billions in damages, Weatherall notes that: "Australia does not have statutory damages (unlike the US) - the copyright owners can't argue that they should just get a fixed amount 'per infringement'." With any luck they'll get called out on their "a download is a lost sale" bull.
Most interesting to me was that the judge ordered that the record companies provide a list of items to be filtered, because -- from memory -- they'd previously refused to provide one.