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."

Comments

FIRST HORSE!

[Anonymous Coward]

I AM A HORSE!

Re:FIRST HORSE!

[Anonymous Coward]

So, is it true what they say about horses?

PS: I 3 TEH GNETOO LUNIX DISTIBRUSHUN

Legal

[daviqh]

Does anything happen fast in the legal relm?

Likely to stir up debate... or not

[sdirrim]

I think at this point it will be hard to change people's mind, so long as they know about this. It is like the last election: People will take a stance and not move, and there will be precious few neutral or swing states (or people).

The 'rights' of women under islamic law

[ringbarer]

Pakistan police in new rape case

A police officer has been arrested in the Pakistani city of Rawalpindi in the second case in a week in which police have been accused of rape.

Three other officers have gone missing after a woman said that four officers gang-raped her in her own home.

A medical report on the woman is due to be released soon.

Last week the head of police in the city of Faisalabad was suspended after he was accused of ordering that a woman be raped.

'Bribe'

Rawalpindi's District Police Officer Saud Aziz told the BBC that three constables had absconded after a woman said that four police personnel raped her in her house on Sunday.

He said that a sub-inspector had been arrested in connection with the case.

The woman alleges that police officials arrested her husband and demanded a bribe of 100,000 rupees ($1,674).

She said she paid the police 30,000 rupees after which her husband was released but the officials continued demanding the remaining amount.

She accuses the four officers of then barging into her house on Sunday and raping her after locking her husband and uncle in another room in the house.

Removed

The case comes after Prime Minister Shaukat Aziz and Supreme Court Chief Justice Iftikhar Chaudhry ordered separate inquiries into the alleged rape of a woman in Faisalabad.

Mukhtar Mai after her Supreme Court ruling
Mukhtar Mai - at the centre of Pakistan's most high profile rape case

Faisalabad police chief Khalid Abdullah was removed from his post after the allegations emerged.

Mr Abdullah has denied any wrongdoing, accusing the woman of lying.

The 23-year-old woman said she was kept in illegal confinement for 15 days and raped by a police officer as "punishment" for seeking to publicise the detention of her husband.

The officer accused of the crime was suspended on Tuesday.

The woman said she was abducted, blindfolded and handcuffed and driven to a house where she was kept for 15 days and raped by a police officer.

Pakistan has witnessed a number of high-profile rape cases in recent months.

The most highly publicised is the case of Mukhtar Mai, 33, who was raped in Punjab province in 2002, allegedly on the order of a village council.

Since then she has become an icon in the campaign for women's justice in conservative Pakistan.

Last week, tribal council members in Karachi were accused of preventing a rape case being reported to police.

The council instead allegedly imposed a fine on the accused.

What did they expect

[Anonymous Coward]

It still surprises me that companies like Kazaa think they can run a P2P service that has no legitimate use, and think they can't get caught. Kazaa is flooded with so much crap (viruses, mis named files) etc, I hope they get f^$%@d.

2006?

[jsitke]

Having to wait until 2006 is going to cost them alot. Of course, this case will be used as a landmark decision for cases in other countries besides Australia...

Oooo!

[hapwned]

Maybe I'll be able to keep the bandwidth-sharing spyware after all! A remix on Madonna's "Like a Virgin" is definetly worth it...

I'm no lawyer but...

[SillySnake]

But if they are going to be sued by every music company on the planet, can't they just declare bankruptcy and dodge the whole thing? I've known of companies here in the USA that do it, though on a much smaller level.

Re:I'm no lawyer but...

[m50d]

Yes, but whatever assets they do have will be taken by the music companies (and being who they are they *will* get them). Since that's all the companies could have got anyway they won't mind.

Re:I'm no lawyer but...

[smbarbour]

I'm not a lawyer either, but this old saying seems to apply: "You can lead a horse to water, but you can't make him drink"

Sharman Networks was not forcing people to download illegal music (they may have made it more accessible, but they didn't force it).

The internet makes accessing illegal content more accessible, but they aren't trying to shut down the whole internet.

Re:I'm no lawyer but...

[Anonymous Coward]

Yes, but whatever assets they do have will be taken by the music companies (and being who they are they *will* get them). Since that's all the companies could have got anyway they won't mind.

If it is a business, say it with me: "REALLY REALLY large bonuses before the end! ;)"

Re:I'm no lawyer but...

[mcrbids]

Yes, but whatever assets they do have will be taken by the music companies (and being who they are they *will* get them). Since that's all the companies could have got anyway they won't mind.

You think the company being sued has ANY assetts at all? I think they are much smarter than that...

My guess is that any assetts, including copyrights, customer accounts, etc. in fact do not belong to them, instead they are a "management" company with the legal responsibility to "maintain" these accounts and assetts for another party, the party of interest.

If Kazaa loses this fight, they'll just close shop. Since they have no assetts, the RIAA can't do jack, and KaZZaa, another "management company" opens its doors at 12:00:01 AM the following day, to begin another 3 years of legal battling with the RIAA and spyware installs on Lusers' computers.

Re:I'm no lawyer but...

[thogard]

Kaaza (like RIAA) have virtual no real assets.

So what happens....
1) 2 Billion dollar judgment
2) Bankruptcy
3) RIAA has proof that piracy cost them 2 Billion Dollars in losses
4) Profit!

Re:I'm no lawyer but...

[Anonymous Coward]

oh sure, and next you'll probably be saying that the tobacco companies didn't force me to smoke.

  you silly Americans with your crazy notions of independent will.

legal costs within the formula

[moz25]

Well, the way it works is that the costs of legal battles and almost certain losses are factored into the business plan. In the meantime, they're making insane amounts of money with the spyware installs and they just have to stretch that for as long as possible. It's a winning strategy that doesn't require the legality of their P2P implementation to be defendable in court.

It's rather nasty that the costs of losing in court are not always so prohibitively high that the crime doesn't pay. Look at microsoft... sorry for that comparison.

How will this turn out?

[laughingcoyote]

I'm not personally familiar with Australian law, I hope someone who is will be able to give us a bit of insight. But until then, I really can't understand how the judge made this ruling. Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is. Their software simply -allows- users to transfer files via that protocol. Are the makers of FTP clients now liable if an FTP user downloads copyrighted material?

Re:How will this turn out?

[interiot]

As far as I can tell, implementors of TCP systems, file protocols (NFS, Samba), etc. When push comes to shove, they may be able to come up with a legal definition to try to separate Kazaa from these. But most likely, this sucks, because the judge didn't realize quite the landmine he was stepping into.

I mean, surely the inventors of the BSD TCP stack have known for a long time that piracy was occuring over the network. And it's possible to do data fingerprinting, even at the TCP level. So what stops them from being legally liable in the future?

Re:How will this turn out?

[Malk-a-mite]

From the original link (opens in new window)
"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."

Re:How will this turn out?

[Iriel]

This unsettles me really. It looks like Australian courts are taking one-liners out of the Grokster vs. MGM ruling in the US and doctoring to the whims of the record labels. Grokster was shut down because they willingly traded infringing content and unoffically endorsed piracy. Kazzaa isn't the same though. While it got a large amount of its user base from digital pirates, they have had a section of their documentation set aside to explain that they don't endorse infringing copyrights with their software.

If the labels are then, able to turn the ruling against a willingly pro-piracy software to a statement that anyone with illegal content is to be held accountable, then the snowball effect will result as you've pointed out. I hope the courts in AU will realize that allowing people to join a network that has digital pirates on it isn't the fault of the creator when it means that entire servers and ISPs should be shut down as a result.

Re:How will this turn out?

[Dr. Evil]

Yeah, but everyone on Kazaa knew exactly what was going on and Kazaa knew plainly that the vast majority of people were doing nothing more than leeching illegally redistributed music.

The inventors of TCP/IP or the BSD stack have no ability to shut the network down. Kazza did, and Kazaa profited from not shutting the network down.

This precedent is interesting to me regarding Freenet. A illegal/legal content ratio could mean that you're obligated not to participate in such a network whether or not you're contributing or consuming content. I.e. could the government outlaw participation in a particular P2P network because of highly illegal content? After all, if a corporation can be held responsible regardless of their participation of the illegal activity, couldn't individuals be held responsible for the same?

Re:How will this turn out?

[laughingcoyote]

The "ability" you seem to be talking about here is "never develop it". Kazaa, like all P2P programs now, is a decentralized network relying on direct connection between users. If Sharman shut down all operations today, the Kazaa network will continue to operate as well (poorly?) as it ever did. There is no "plug to pull", as there was with Napster.

Re:How will this turn out?

[RAMMS EIN]

I think you can do better than that. Just put all your thoughts about the music industry being evil and KaZaa providing you with access to free stuff aside for a moment.

Then think about what makes KaZaa different from FTP.

1. FTP is a generic file transfer protocol. KaZaa is an application that allows searching for music (and movies? I'm not really familiar with it) and subsequently downloading it. So we can say KaZaa specializes in providing access to music (and movies?), whereas FTP doesn't specialize in any sort of file in particular.

2. KaZaa was programmed in a time when the connection between peer-to-peer and copyright infringement was well-established. It is very unlikely that the authors weren't aware of that fact. Thus, the authors of KaZaa probably knew that their software would be used for copyright infringement.

3. The files accessed through KaZaa come from other users of the system. There are many of those. Files accessed through FTP come from a few servers. FTP server admins have been known to take down offending material when made aware of its existance. The hopes of something similar happening to offending material shared by KaZaa users is futile. The only way to prevent rampant copyright infringement would be through the software.

4. Although the authors were aware (if not before writing it, then certainly after release) that their software was used for rampant copyright infringement, and despite the fact that they are the only ones who can do something about it, they have not taken any steps to prevent the abuse.

I think that makes it clear that the authors of KaZaa wrote it as a tool for illegal file trading, and aren't gonna do a thing to stop it.

Does that make them guilty? Perhaps; time will tell. Does finding them guilty imply that the authors of the FTP protocol are guilty? I don't think so. FTP clearly wasn't originally envisioned to be used for rampant copyright infringement. It's basically the difference between selling swords (in old times) and kitchen knifes; both can be used for cutting or killing, but the former have killing as their primary purpose (and are made with that understanding), whereas the latter are primarily for cutting, and the makers can hardly be accused of knowing the knife would be used for killing and making it anyway.

Re:How will this turn out?

[Dr. Evil]

Very few P2P programs are completely decentralized. VERY few.

"When a client first tries and connects to the network if first has to register with a central server. This is problematic as if the server is removed from the network then it will stop working. This is what I am sure the RIAA is trying to do by attempting to shut down KaZaa and FastTrack. It also allows for complete control of the network should they wish to introduce subscription fees for example. In part this also a possible reason why the Morpheus download client was easily sabotage by KaZaa and force Morpheus to go over to the Gnutella protocol."

http://answers.google.com/answers/threadview?id=35 225

Re:How will this turn out?

[shark72]

"I'm not personally familiar with Australian law, I hope someone who is will be able to give us a bit of insight. But until then, I really can't understand how the judge made this ruling."

No worries -- the decision is online. It's some 350 paragraphs, but it's pretty well laid out and should answer all the questions you have: what they were being charged with, what evidence was collected, and why the judge ruled as he did.

"Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is."

Nope: Kazaa is a product by Sharman Networks, who were shown to have a business that relied on inciting, encouraging, and profiting from widescale piracy. The decision (I have provided the link above) has all the smoking guns.

"Are the makers of FTP clients now liable if an FTP user downloads copyrighted material?"

No. I hope you can understand why.

Re:How will this turn out?

[shark72]

"When push comes to shove, they may be able to come up with a legal definition to try to separate Kazaa from these."

Huh? This was all covered in the decision. Sharman tried the "we're just a carrier" defense and were laughed at.

"But most likely, this sucks, because the judge didn't realize quite the landmine he was stepping into."

Reading the decision shows that they went way beyond that. I think many people who've RTFA but who haven't RTFCD are under the impression that the ruling was made after 20 minutes; the reality is that the case stretched on for many, many months, and included the testimony of computer science professors from UC Berkeley and other institutions. The common Slashdot mentality of "everybody is naive and stupid besides me" doesn't apply here. Really, guys... read the decision if you want to understand the background.

Re:How will this turn out?

[shark72]

"Kazzaa isn't the same though. While it got a large amount of its user base from digital pirates, they have had a section of their documentation set aside to explain that they don't endorse infringing copyrights with their software."

Most P2P software has this. It's meaningless.

The court records show that Sharman condoned, encouraged and profited from piracy. They even ran ad campaigns that made it clear that they knew what was going on, and that they wanted people to use their network for piracy.

"I hope the courts in AU will realize that allowing people to join a network that has digital pirates on it isn't the fault of the creator when it means that entire servers and ISPs should be shut down as a result."

Kazaa's wild success as a medium for piracy was most certainly as a result of Sharman's efforts. Sharman isn't a gathering "information wants to be free" hippies... they're a for-profit company, set up in the tax haven of Vanatu, for the singular purpose of making lots of money by tapping into the huge demand for pirated material. And they were a success -- they've made untold millions.

If you thought that their warnings to users not to engage in piracy were genuine or heartfelt, or would let them escape the law, you were mistaken.

Re:How will this turn out?

[zakezuke]

1. FTP is a generic file transfer protocol. KaZaa is an application that allows searching for music (and movies? I'm not really familiar with it) and subsequently downloading it. So we can say KaZaa specializes in providing access to music (and movies?), whereas FTP doesn't specialize in any sort of file in particular.

KaZaa is an application that is designed to index a collection of files (perhpas even ID3 tags) and publish that list of files in a searchable database. How is this different from archie and veronica
very easy rodent-oriented net-wide index of computerized archives.. How is this different from yahoo, google, and other search engines?

2. KaZaa was programmed in a time when the connection between peer-to-peer and copyright infringement was well-established. It is very unlikely that the authors weren't aware of that fact. Thus, the authors of KaZaa probably knew that their software would be used for copyright infringement.

So would Firefox be more accountable than Netscape or Mosiac because it came later for any copyright infringement that goes on the WWW.

3. The files accessed through KaZaa come from other users of the system. There are many of those. Files accessed through FTP come from a few servers. FTP server admins have been known to take down offending material when made aware of its existance. The hopes of something similar happening to offending material shared by KaZaa users is futile. The only way to prevent rampant copyright infringement would be through the software.

There is nothing stopping anyone from hosting a FTP site on their own host machine. Or even http sever. Heck HTTP is even worse because if you have copyrighted materials in a directory designated no robots you run the risk of having your files indexed and accessable by anyone on the planet.

4. Although the authors were aware (if not before writing it, then certainly after release) that their software was used for rampant copyright infringement, and despite the fact that they are the only ones who can do something about it, they have not taken any steps to prevent the abuse.

There is presently no sutable system to establish the wish of the copyright holder. There is no centralized database offered by the RIAA nor MPAA that lists material that sharing is not permited. Given that many artists and peformers are pro-p2p and absolutly no way presently to establish the wish of a given artest, who's responciblity is it?

Take porno for instance. You can use KaZaa's network to download porno, much of it in 5, 10, or 20meg little bipverts that usually involve a cum-shot facial deal with a url in bold friendly letters. These free vids serve to prmote services that typicaly offer full lenth videos that you can download off their respective sites. This is a legit application of p2p networks.

If the RIAA wants to protect musician's rights, they have to create a centralized database that clearly list the copyright holder's wish on how they want music distributed. This is the only way to protect the rights of those who don't want to use P2P networks and those who expressly desire it. This is their job.

Does that make them guilty? Perhaps; time will tell. Does finding them guilty imply that the authors of the FTP protocol are guilty? I don't think so. FTP clearly wasn't originally envisioned to be used for rampant copyright infringement

So, are you saying if Kazza employed FTP protocal rather than it's own crappy protocal then they would be less guilty? Anonymous FTP was established without thought it might be used for piracy? This is respectfully a laugh. What about Ward Christian Protocal aka X-modem in the 1980s? How about Kermit, Y-modem or Z-modem. You can believe that these were written without thinking they might be used for copyright infringement... but you would be deluding yourself.

Re:How will this turn out?

[elronxenu]

Read Garth Montgomery's reports from watching the case.

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.

Re:How will this turn out?

[Anonymous Coward]

Huh? This was all covered in the decision. Sharman tried the "we're just a carrier" defense and were laughed at.

This is because, all arguments about the morality of sharing/P2P aside, Sharman Networks was being full of crap. They are highly dodgy, built around a legal morass of front and shell companies, and the first time they were raided, they immediately started trashing their servers as the lawyers entered. The plaintiffs had to get an Anton Pillar order - where the defendant gets no knowledge/opportunity to challenge - to prevent this happening again, and even then the next raid saw one of the execs racing off in his/her Porsche to their other office trying to beat the legal teams and delete the incriminating evidence. Their pretending they knew nothing is a laughable disingenuity.

Re:How will this turn out?

[laughingcoyote]

1. FTP is a generic file transfer protocol. KaZaa is an application that allows searching for music (and movies? I'm not really familiar with it) and subsequently downloading it. So we can say KaZaa specializes in providing access to music (and movies?), whereas FTP doesn't specialize in any sort of file in particular.

While I've not used the thing myself (I doubt it'd even run on Linux), everything I've found so far indicates that it operates much like any P2P filesharing application. It returns matches in filenames to a search string. Therefore, searching for "Madonna" will match equally well songs from the artist by that name, or a photo of a sculpture of the Madonna entitled "madonna.jpg". While I would certainly imagine you'd be much more LIKELY to find the tunes, the content is decided by the users. The search feature returns anything matching, and simply returns more results the more popular the item is-isn't that how search is -supposed- to work?

As to the bit with FTP-both, in the end, are protocols designed to allow two computers to transfer files directly from one to another. Sharman also make a program with a search engine, designed to crawl this network, but you're confusing the -program- with the -protocol-. In this case, I cited developers of an FTP client-a program, not FTP itself-a protocol. Now, of course, in this case, Sharman is the creator of both, but what they're being held liable on appears to be the PROGRAM.

All types of programs can be and are used to infringe copyright. Web browsers, Bittorrent clients, FTP clients and servers, Limewire, Emule, Freenet, IRC clients, I could go on for quite some time. it's been known for a long time that -massive- amounts of file trading go on over IRC, but no one's trying to sue mIRC for making money off their IRC client. They're just providing the tool, the USER decides what to do with it! What I still fail to see is how that doesn't apply here.

2. KaZaa was programmed in a time when the connection between peer-to-peer and copyright infringement was well-established. It is very unlikely that the authors weren't aware of that fact. Thus, the authors of KaZaa probably knew that their software would be used for copyright infringement.

This is the most dangerous argument of all. In no other area do we see accepted the argument that you know something will be misused as an argument for outlawing it entirely. Certainly it is possible to gravely misuse a gun, knife, baseball bat, or even a car. Yet we do not hold the manufacturers of these things responsible when they are misused, even though it can certainly be said that they are aware such misuse will occur. (Do you think Ford's not aware of the drunk driving problem?)

While Betamax would certainly not apply to an Australian case, it certainly set a wise precedent-you're not responsible for the actions of the users of a given product, so long as there EXIST potential legal and legitimate uses for it. Kazaa's licensing of the "gold files" certainly counts as a legitimate use, as do the countless indie artists and the like who gladly invite their fans to share their music on that network and similar ones.

3. The files accessed through KaZaa come from other users of the system. There are many of those. Files accessed through FTP come from a few servers. FTP server admins have been known to take down offending material when made aware of its existance. The hopes of something similar happening to offending material shared by KaZaa users is futile. The only way to prevent rampant copyright infringement would be through the software.

And many don't, or don't ever have the stuff get caught, or live somewhere they can't be made to do it. Again, no other manufacturer, of anything, is prevented from making a product with both legal and illegal uses, even if they KNOW that the illegal use will be done!

Your assertion that so many users are committing copyright infringement speaks volumes, as well. Generally, widespread civil

Re:How will this turn out?

[Anonymous Coward]

I really should get an slashdot id so I can get some mod points and mod posts like this up. At the start of the decision linked above there is a summary that is very short, very clear and very balanced. Go read it.

Re:How will this turn out?

[Anonymous Coward]

KaZaa is an application that is designed to index a collection of files (perhpas even ID3 tags) and publish that list of files in a searchable database. How is this different from archie and veronica
very easy rodent-oriented net-wide index of computerized archives.. How is this different from yahoo, google, and other search engines?

Last I checked, none of those services took out print and web advertising listing themselves as a place to get this content, for free, illegally.

Re:How will this turn out?

[ffrinch]

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:

i) despite the fact that the Kazaa website contains warnings against the sharing of copyright files, and an end user licence agreement under which users are made to agree not to infringe copyright, it has long been obvious that those measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users. The respondents have long known that the Kazaa system is widely used for the sharing of copyright files;

(ii) there are technical measures (keyword filtering and gold file flood filtering) that would enable the respondents to curtail - although probably not totally to prevent - the sharing of copyright files. The respondents have not taken any action to implement those measures. It would be against their financial interest to do so. It is in the respondents' financial interest to maximise, not to minimise, music file-sharing. Advertising provides the bulk of the revenue earned by the Kazaa system, which revenue is shared between Sharman Networks and Altnet.

(iii) far from taking steps that are likely effectively to curtail copyright file-sharing, Sharman Networks and Altnet have included on the Kazaa website exhortations to users to increase their file-sharing and a webpage headed 'Join the Revolution' that criticises record companies for opposing peer-to-peer file-sharing. They also sponsored a 'Kazaa Revolution' campaign attacking the record companies. The revolutionary material does not expressly advocate the sharing of copyright files. However, to a young audience, and it seems that Kazaa users are predominantly young people, the effect of this webpage would be to encourage visitors to think it 'cool' to defy the record companies by ignoring copyright constraints.

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.

Re:How will this turn out?

[NutscrapeSucks]

BSD TCP? I think your head is shoved up too far up inside your computer case.

It has nearly nothing to do with technology and everything to do with Kazaa's business model.

Re:How will this turn out?

[zakezuke]

Last I checked, none of those services took out print and web advertising listing themselves as a place to get this content, for free, illegally.

I was not aware Kazaa took out print advertsing. I'm aware of sites that claimed you could download Kazaa for a fee and get stuff for free legaly.

Web advertising well... www.t50.com has been around "much" longer and links to sites that are clearly labled as "illegal downloads". Warning... these links are noted for their porn popups.

Re:How will this turn out?

[Frogbert]

As of the latest American Australian free trade agreement:

Australian Law == American Law

Unless there is a situation where Americans may be better off, in that case American Law overrules Australian law.

Re:How will this turn out?

[Shanep]

Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is.

No it absolutely is not. It *uses* some protocols, through an application designed to provide advertising while also making it really easy to find and download the content you like. They *KNOW* that people are using it to download copyright material in a big way and they've done nothing to prevent this because THAT is the catalyst to them making money from the advertising.

If they effectively prevent the downloading of copyrighted material, the popularity of Kazaa will suddenly drop to a miniscule fraction of what it is now and that will result in the same for their profits.

Comparing Kazaa to FTP is completely and utterly ridiculous. FTP is a protocol, the Kazaa Media Desktop is a money making machine which happens to use some protocols. The court case is not about a protocol.

Re:How will this turn out?

[Shanep]

I mean, surely the inventors of the BSD TCP stack have known for a long time that piracy was occuring over the network. And it's possible to do data fingerprinting, even at the TCP level. So what stops them from being legally liable in the future?

They were not leveraging profits specifically from the illegal activities and then doing nothing to stop those activities.

KMD is an advertisement platform. Protocols are protocols.

Re:How will this turn out?

[Shanep]

I think many people who've RTFA but who haven't RTFCD are under the impression that the ruling was made after 20 minutes; the reality is that the case stretched on for many, many months, and included the testimony of computer science professors from UC Berkeley and other institutions.

Make that 3 years.

One of the professors on the Kazaa side had very little integrity.

226 The two American experts called by counsel for the Sharman respondents were Keith Wimberly Ross and Justin Douglas Tygar.

227 Professor Ross is Professor of Computer Science at the Polytechnic University in Brooklyn, New York. He has taught computer systems engineering at university level since 1985 and has published widely. At the time of giving evidence, he was researching aspects of peer-to-peer networking pursuant to three grants provided by the National Science Foundation, a United States government agency. The professor was obviously well qualified to give expert evidence in this case. However, my confidence in him was shaken during the course of his cross-examination.

228 Mr Bannon showed Professor Ross a draft of his report that contained a passage dealing with the relationship between Joltid's PeerEnabler software (used in FastTrack) and Altnet's TopSearch technology. The draft shows exchanges between Professor Ross and a solicitor at Clayton Utz, acting for the Sharman respondents. Professor Ross initially wrote the words: 'The Altnet TopSearch Index works in conjunction with the Joltid PeerEnabler to search for Gold Files'. The solicitor crossed out this sentence on the draft and suggested a substitute sentence: 'TopSearch searches its own Index file of available Altnet content and PeerEnabler is not needed or used for this, other than to assist in the periodic downloading of these indexes of available content'. Professor Ross replied: 'I was not aware of this, even after our testing. But if you say it is so, then fine by me'. He left the solicitor's words in the draft.

229 When Mr Bannon asked about this, Professor Ross responded:

'Unfortunately, I don't have the report memorised. But it is my recollection that I was not comfortable with this and I took it out in the end. But I would like to see my report to confirm that.'

230 Mr Bannon then showed Professor Ross the email showing the solicitor's response to his 'fine by me' reaction. The solicitor said: 'Keith, we want to try to avoid you being exposed to criticism so how about'. The solicitor then suggested the sentence that appears in Professor Ross' final report. The cross-examination went on:

'You see it wasn't you feeling uncomfortable. Clayton Utz said, well, in effect, Keith we want to try and avoid you being exposed to criticism, so how about something different. And they ruled out what you were otherwise prepared to swear up to based solely on their say so? --- I wouldn't agree with that. I wouldn't have been comfortable putting it into the final report I suppose unless I was given further evidence of this fact.

That is not what you communicated? --- Well you have to read between the
lines. I said that we had phone calls as well and during the phone
conversations often I would indicate that there were some things I was
uncertain with and I would want an additional explanation or justification.

You said: "If you say it is so then fine with me." That is all you said? --- Once again I do not have my final report in front of me so I am not 100 per cent sure what I put there. But again in saying this I just know the way I am personally. What I am saying there: "Fine with me, once you give me additional proof".'

231 I cannot accept that explanation. I am forced to conclude that Professor Ross was prepared seriously to compromise his independence and intellectual integrity. After this evidence, I formed the view it might be unsafe to rely upon Professor Ross in relation to any controversial matter. Of course, that does not mean his evidence should be totally disregarded.

Re:How will this turn out?

[rtb61]

Keyword filtering is technically an illegal judgement as nobody has the legal right to copyright indivdual words which that judgment would be implying. So compulsary key word filtering is actually the theft of those words from the public domain. Everybody still has the right to select their own file names. As to KaZaA's liabilities, who cares, they are a commercial company and that is their problem. Stupid legal judgements in court are our problem. Pardon my ignorance but what the heck is Gold File Flood Filtering.

Re:How will this turn out?

[Anonymous Coward]

None of that surprised me at all. Clayton Utz has very little integrity.

I used to be an employee, so I'll be careful and mention something that's on public record:

They encouraged their client, a tobacco company, to adopt a zero document retention policy, aka a shredding party, /during/ a lawsuit from a cancer sufferer.

Not nice, Mr Law Firm.

Re:How will this turn out?

[laughingcoyote]

Comparing Kazaa to FTP is completely and utterly ridiculous.

Alright, is it really that hard to read? I've been told 3 times now that I'm comparing a program to a protocol. In my post, I specifically stated the developers of an FTP -CLIENT-. This is (say it with me) a PROGRAM which uses PROTOCOLS, which certainly could make money for someone, and which most certainly could be used to infringe copyrights.

Also, Kazaa -is- part protocol-other programs (Kazaa Lite, and so on) also access their network, so apparently, there IS a network or protocol which exists separately from the program, and can be accessed independently. So, we've got the same thing-a program (the Kazaa desktop, Kazaa Lite, whatever) accessing a protocol (the Kazaa network). You may not want to -think- I'm right, but you've illustrated, so far, no differences aside from marketing practices.

I'm also a bit concerned about that-the judge found that Kazaa was "authorizing infringement" simply by criticizing the record companies' policies. Nowhere that I can find on their website does it EVER say "Alright, go ahead and do it anyway." And in fact, their terms of use say the exact opposite. Now, do they really mind? I really doubt it. But I sure don't like seeing the free speech implications of that for Australians-simple criticism of someone's actions amounts to encouragement of a third-party's unlawful act? Companies are now responsible for unlawful acts on the part of their customers if they say the wrong thing? Plenty of people have found good cause to criticize the record and movie industries, surely someone with a stake in the situation is even more likely to do so, and has a great free speech interest in being able to do so.

Please reread, get rid of the straw men, and comment again.

Re:How will this turn out?

[Shanep]

Alright, is it really that hard to read? I've been told 3 times now that I'm comparing a program to a protocol. In my post, I specifically stated the developers of an FTP -CLIENT-. This is (say it with me) a PROGRAM which uses PROTOCOLS, which certainly could make money for someone, and which most certainly could be used to infringe copyrights.

How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download copyrighted works?

Also, Kazaa -is- part protocol-other programs (Kazaa Lite, and so on) also access their network, so apparently, there IS a network or protocol which exists separately from the program, and can be accessed independently. So, we've got the same thing-a program (the Kazaa desktop, Kazaa Lite, whatever) accessing a protocol (the Kazaa network). You may not want to -think- I'm right, but you've illustrated, so far, no differences aside from marketing practices.

You need to read better. I said that this case is not about the protocols. The protocols are not what the case is about. Certainly they get mentioned during the case, to complete the picture, but it is the way the businesses are being run and the way the KDM works that the case is about.

I'm also a bit concerned about that-the judge found that Kazaa was "authorizing infringement" simply by criticizing the record companies' policies. Nowhere that I can find on their website does it EVER say "Alright, go ahead and do it anyway."

You think that their web site has not changed over the course of 3 years? You think that mirrors of the web site were not periodically captured as evidence over the course of that 3 years?

But I sure don't like seeing the free speech implications of that for Australians-simple criticism of someone's actions amounts to encouragement of a third-party's unlawful act?

There was TONS of evidence, experts and lawyers working on this for THREE YEARS. It does not just come down to one thing.

BTW, you said "Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is ", which is absolutely not correct. That is not "all it is". Maybe lots of people have pulled you up on this because it's WRONG? Kazaa is NOT just a protocol and the protocols involved are not what the case is about. The case was about business practices and their client software.

Please reread, get rid of the straw men, and comment again.

There are no "straw men" here, I can assure you.

Re:How will this turn out?

[Shanep]

How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download copyrighted works?

I would like to change this to:

How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download works, which incidentally is very effective at finding copyrighted works?

Re:How will this turn out?

[laughingcoyote]

How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download copyrighted works?

I've never searched for an ad-supported FTP client, but I imagine there's at least one out there which does indeed install adware. I would also change that to reflect the facts: an easy way to find filenames of the user's choice, many of which will be copyrighted works.

You need to read better. I said that this case is not about the protocols. The protocols are not what the case is about. Certainly they get mentioned during the case, to complete the picture, but it is the way the businesses are being run and the way the KDM works that the case is about.

Don't kid yourself. If they succeed only in eliminating the bloated, ad-filled Kazaa client and converting more people to alternatives like Kazaa Lite (or, for that matter, switching them to an alternative method entirely) the RIAA has gained nothing. They're out to sue developers here, I would bet you the RIAA's profits last year. They want P2P GONE, as in "illegal even to use or develop for", not just "filtered"-that's trivial to trick.

You need to read better. I said that this case is not about the protocols. The protocols are not what the case is about. Certainly they get mentioned during the case, to complete the picture, but it is the way the businesses are being run and the way the KDM works that the case is about.

Exactly. Which is why I compared a program (FTP client) to a program (Kazaa client).

You think that their web site has not changed over the course of 3 years? You think that mirrors of the web site were not periodically captured as evidence over the course of that 3 years?

I really don't know, I guess I neglected to read the Kazaa site every few days for the past few years. I can't, however, find a reference to that in the case documentation. Can you show me what I missed or provide other evidence, or is this just your speculation?

There was TONS of evidence, experts and lawyers working on this for THREE YEARS. It does not just come down to one thing.

It looked to me like it came down to just one thing, just as Grokster did. Direct infringement's out, so all you've got left is this nebulous "inducement" thing. And the judge -never- cited in his decision that Kazaa -directly- advocated violation of the law-only CHANGE of the law, and/or change of the RIAA's business practices, with their "join the revolution" bit, while (even by his admission!) condemning violations of that law while it's in effect. Now, of course that's not what's really in their heads, but the day we start legislating what's in someone's head is the day I run for it. And no, it wasn't effective, but nor have the RIAA's warnings been-and they're trying in dead earnest. I think a case could be made under those circumstances that there isn't a known way right now for a copyright warning to be effective, and Kazaa certainly shouldn't be expected to do what someone with a vested interest in succeeding can't manage.

BTW, you said "Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is ", which is absolutely not correct. That is not "all it is". Maybe lots of people have pulled you up on this because it's WRONG? Kazaa is NOT just a protocol and the protocols involved are not what the case is about. The case was about business practices and their client software.

You're correct, I worded that poorly. Please replace with "Kazaa is a crappy data transfer protocol, coupled with a crappy, adware-laden client program. However, the protocol can (and does) function for clients other than the "official" one, and may be considered separate from it."

Re:How will this turn out?

[Shanep]

I've never searched for an ad-supported FTP client, but I imagine there's at least one out there which does indeed install adware. I would also change that to reflect the facts: an easy way to find filenames of the user's choice, many of which will be copyrighted works.

The point, is that this client software made it very easy to find media (including copyrighted media), which made it popular. This popularity provided a large audience for this client software to be used as an effective advertising platform. They were aware their software was being used to infringe copyright in a big way, yet they seemingly did next to nothing to prevent this and thus they gained financially from allowing people to continue to use their software in an illegal manner.

If someone did the same thing tomorrow, but used FTP, they would find themselves in court too. FTP though, is not really appropriate for this sort of P2P.

Don't kid yourself.

I'm not.

If they succeed only in eliminating the bloated, ad-filled Kazaa client and converting more people to alternatives like Kazaa Lite (or, for that matter, switching them to an alternative method entirely) the RIAA has gained nothing. They're out to sue developers here, I would bet you the RIAA's profits last year.

They went after the parties controlling the business. The people requesting the features from the developers.

They want P2P GONE, as in "illegal even to use or develop for", not just "filtered"-that's trivial to trick.

In Australia? Prove it please.

Exactly. Which is why I compared a program (FTP client) to a program (Kazaa client).

You said:

Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is.

This statement is NOT true. Kazaa is not just a "data transfer protocol" and the protocols involved are of little interest to this case, comparatively speaking.

Their software simply -allows- users to transfer files via that protocol.

There are more than one protocol involved. Plus their software delivers advertisements.

Are the makers of FTP clients now liable if an FTP user downloads copyrighted material?

Makers of an FTP client would be liable if they provided a client of similar ilk. One that helps the makers gain from assisting people to infringe copyright beyond just the transfering of arbitrary files which might just happen to be copyright infringing.

I really don't know, I guess I neglected to read the Kazaa site every few days for the past few years. I can't, however, find a reference to that in the case documentation. Can you show me what I missed or provide other evidence, or is this just your speculation?

I work in computer forensics. Web sites changing content is not uncommon and in a legal case, which includes evidence from a web site, it is typical to capture changes in case they are needed as evidence.

It looked to me like it came down to just one thing, just as Grokster did.

The judge considered all of the evidence and there was a lot of it.

Direct infringement's out, so all you've got left is this nebulous "inducement" thing. And the judge -never- cited in his decision that Kazaa -directly- advocated violation of the law-only CHANGE of the law, and/or change of the RIAA's business practices, with their "join the revolution" bit, while (even by his admission!) condemning violations of that law while it's in effect. Now, of course that's not what's really in their heads, but the day we start legislating what's in someone's head is the day I run for it. And no, it wasn't effective, but nor have the RIAA's warnings been-and they're trying in dead earnest. I think a case could be made under those circumstances that there isn't a known way right now for a copyright warning to be effective, and Kazaa certainly shouldn't be expected to do what someone with a vested interest in succeeding can't manage.

Kazaa did not attempt to pr

Net worth of Sharman Networks

[Snake98]

"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.

Re:Net worth of Sharman Networks

[WilliamSChips]

It's the RIAA. Think about it.

Re:Net worth of Sharman Networks

[ScrewMaster]

Besides, this is not now and has never been about getting money from Sharman. This is about eliminating an effective content distribution medium not under the direct control of the music industry.

Not that it matters. In the long run the technology of file-sharing will advance beyond any content provider's ability to control. Encryption, distributed hash tables ... it's already happening. And the reason that it's happening so quickly is because the content people have taken such a hard line. Ultimately, they are going to regret not looking at the Internet as an opportunity rather than a threat.

Look ... a lot of businesses had to face facts when the Internet went public. Some went under, others adapted to a new way of doing things and flourished. And that's the normal course of events when a major technological phase-change occurs. The media outfits, unfortunately, have chosen to not adapt. Instead, they have used the law (in numerous countries) to threaten and intimidate people and companies, and have gone to the extreme of buying custom-written laws, all with the intent of preserving the "status quo ante". Unfortunately for them, the cat is not only out of the bag but has left the country.

Re:Net worth of Sharman Networks

[stubear]

So, I should lose my constitutional rights because of a shift in technology? Funny, technology makes it damn easy to keep track of people through spying on communications and the use of camera systems. Throw in RFID and you've got something there. Forget about your rights, technology has made them obsolete. Or was your argument meant to last only so far as you being able to get shit for free?

Re:Net worth of Sharman Networks

[argoff]

No, you should loose that constitutional right because the "right" to restrict what people copy was never a just right to begin with. New technology is just bringing that problem to the surface. It is a phony property right. The same thing happened to peoples "right" to own slaves when the industrial revolution forced open the labor market. [scarcasim=on] What? Don't you believe in property rights? Don't you believe in capitalisim in America? You commie. Stealing is wrong! [scarcasim=off]

Re:Net worth of Sharman Networks

[shark72]

"The media outfits, unfortunately, have chosen to not adapt."

Wow. Apple just sold their 50 millionth track on the iTunes Music store. Online music sales are now 5% of the total music market, and they're growing logarithmically. And the record labels probably make more money via online sales than the traditional channels. It may have taken a few years of stumbling for them to figure it out (and with the help of smart people like Steve Jobs), but this "the media companies just don't get it" line is getting harder and harder to believe.

"Instead, they have used the law (in numerous countries) to threaten and intimidate people and companies, and have gone to the extreme of buying custom-written laws, all with the intent of preserving the "status quo ante"."

Media companies, just like you and me, can walk and chew gum at the same time. They've even admitted to using the carrot and stick approach with regard to the online music business. One one hand, they're taking advantage of the wildly growning demand for paid, legal music downloads, and on the other hand, they are taking advantage of their rights under the law, which is entirely their prerogative.

If a good friend of yours told you that somebody was using technology to break the law and give them grief, and they told you that they were just going to roll over and not contact the authorities, you would likely accuse them of being a huge pussy -- and rightly so. Technology or no technology, you and your friends fight back when you think you're wronged -- so you can certainly expect big businesses to do the same.

Re:Net worth of Sharman Networks

[ScrewMaster]

Yes. Apple sold it. Not some RIAA-sponsored site, or one put up by Sony, Vivendi or any of the rest of them. And if you think that the entertainment people are happy about that, you are sadly mistaken. I'm sorry, but the history of both the motion picture and music industries is one of steadily increasing control over content distribution channels. Period. So no, I don't think they really "get" it, because they would be perfectly happy to return to the old ways of distributing content. iTunes is nothing but an aberration to these folks, a transient blip on their return to complete dominance of content distribution.

And again, the history of this industry is that has never been able to walk or chew gum at the same time, until forced at virtual gunpoint to do so. The MPAA and the RIAA, in particular, have been at the forefront of every legal and economic attack on writeable media since the audio cassette. Read up on some of Jack Valenti's impassioned tirades against the VCR when testifying in front of Congress. No, they most certainly do not get it, will never get it, and would like nothing better than for the Internet to just go away.

I don't have any problem, for the most part, with companies taking advantage of their legal rights. However, they don't have the right to use the mere threat of legal action to coerce money and co-operation from individuals merely accused of a crime with flimsy evidence, with no day in court in sight. Yet that is what they have been doing. As another poster pointed out, that is called "barratry" and is, itself, against the law.

A few years ago, with the advent of Napster, the big studios suddenly found themselves in a very unpleasant situation. Their own mishandling of (really, "abuse of") their customer base via an illegal oligopoly, coupled with modern telecommunications and some nifty software, effectively eliminated their unquestioned control of content distribution. This happened virtually overnight. And control of distribution is the crux of the problem: no matter how many songs that iTunes sells for them it won't make any difference because iTunes isn't owned or controlled by the RIAA, and Apple Computer is not part of their group.

And what you don't seem to understand is that the major entertainment producers, as represented by the aformentioned "industry trade groups" were not satisfied with their rights under the law. Rather than simply accept that they have to work within the limits of copyright (as skewed as it already was in their favor) they went to Congress and bought (for there is no other real description for it) a series of new laws. Some of the powers encoded in laws such as the DMCA are probably even unConstitutional, for all that means nowadays. But the truth of the matter is the entertainment crowd will do anything to get their way, no matter who gets hurt in the process. If I worked for a company that had been unfairly sued out of business because of a DMCA action, I would most assuredly be damning the MPAA to hell right now. They aren't "just taking advantage of their rights under the law", as you say. You can't be that naive about this. They have rewritten copyright law to suit themselves, and damn anyone that gets in their way.

Both of these "industries" (and I use the term loosely) are some of the worst examples of what capitalism has to offer. They have no respect for any rights but their own, no willingness to accept competition at any level, no respect for the law except as benefits them. Actually, I could probably be describing Microsoft here but I'm not.

Re:Net worth of Sharman Networks

[shark72]

" Yes. Apple sold it. Not some RIAA-sponsored site, or one put up by Sony, Vivendi or any of the rest of them. And if you think that the entertainment people are happy about that, you are sadly mistaken."

Remember, the record companies do 99% of their business through resellers. That's largely how their business model works. The iTMS is just another reseller to them, like Amazon or Tower Records. The difference is that it's a wildly popular reseller, and they make more margin than they do in the traditional channel -- no returns, price protections, co-op ads, and the squillion other things that eat at margins in the traditional brick and mortar channels.

"And control of distribution is the crux of the problem: no matter how many songs that iTunes sells for them it won't make any difference because iTunes isn't owned or controlled by the RIAA, and Apple Computer is not part of their group."

That's how it's always worked. The record companies have traditionally worked in what's called a two-tier distribution mechanism: they sell the CD into distribution, who in turn sells it to a reseller. Stating that the record companies are upset because they don't own the iTMS is a bit like stating that they are unhappy because they don't own Wal-Mart, Best Buy, Amazon, Tower Records, or any of the innumerable music stores out there. It's correct, but meaningless.

"No, they most certainly do not get it, will never get it, and would like nothing better than for the Internet to just go away."

The record industry has survived half a dozen format changes over the past 50 years. The iTMS is huge. Meanwhile, "Open source" music labels like Magnatune, which fit many Slashdotter's model of the perfect record label, are flailing. The major labels get this Internet thing just fine.

"And what you don't seem to understand is..."

"You can't be that naive about this."

Oh, please.

Re:Net worth of Sharman Networks

[evilviper]

Forget about your rights, technology has made them obsolete.

To be fair, there is a huge difference between the two.

Privacy rights are not an artifical government construct, designed to help companies profit, because the profit motive to companies would directly benefit the public at large.

If the detrimental effects of copyright become greater than the benefits of copyright to the public, it would be only right for the government to eliminate copyright. Not that I'm suggesting we are anywhere near that extreme.

Re:Net worth of Sharman Networks

[stubear]

First of all, every law is an artificial construct. Nature has only one rule, survival of the fittest. Anything else is just established to bring balance to those who are less fit to survive.

Second, Intellectual property rights are designed to grant copyright holders, many of which are individuals, the right to protect the expression of an idea. It is not designed to help companies make a profit.

O.T. Text of decision against Irish ISPs

[Anonymous Coward]

http://www.bailii.org/ie/cases/IEHC/2005/233.html

Flip Flop?

[jatemack]

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." Ahh...this remained unchanged today from their announcement yesterday? Let's hope so...

Exactly, and what's the point of Appeal?

[Boss, Pointy Haired]

I'm not going to get too heated about this because there are probably very good reasons, but what exactly is the point of the "appeal" process.

A judge has ruled against you. DEAL WITH IT.

Does anyone know the legal/moral/constitutional requirement for the right to apeal? Why is the appeal Judge / Jury's virdict considered any more or less valid than the original?

There just doesn't seem to be any closure in legal processes involving tech companies, they just go on indefinitely.

Re:Exactly, and what's the point of Appeal?

[ArsonSmith]

WOW, you are a scary man. DEAL WITH IT???? I'd sure hate to be wrongly accused in your country and found guilty.

Anyway it is to make sure that due process was followed and to help insure you are not convicted of something you did not do.

Re:Exactly, and what's the point of Appeal?

[laughingcoyote]

...but what exactly is the point of the "appeal" process. ... Does anyone know the legal/moral/constitutional requirement for the right to apeal? Why is the appeal Judge / Jury's virdict considered any more or less valid than the original?

The last I checked, judges and juries are comprised by human beings, known to make the occasional error, and are vested with a huge degree of power and authority. The best defense we've found so far against human error is review by many. Even newspaper articles are reviewed by an editor before publication. Should we not apply the same mechanism to judicial verdicts, that often possess the power to bankrupt or imprison someone?

Re:Exactly, and what's the point of Appeal?

[Anonymous Coward]

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)

Re:Exactly, and what's the point of Appeal?

[Anonymous Coward]

Even newspaper articles are reviewed by an editor before publication.

A mere newspaper article, sure. But the pinacle of journalism is surely the Slashdot article; nobody's ever accused them of having been reviewed before publication. I'm not convinced they're even once-viewed.

Re:Exactly, and what's the point of Appeal?

[Kjella]

Does anyone know the legal/moral/constitutional requirement for the right to apeal? Why is the appeal Judge / Jury's virdict considered any more or less valid than the original?

Note, I'm not sure how much applies to the US:

1) In many lower courts, you have a single judge or a panel. More judges obviously have more weight, without making it necessary to have a full panel for every case (they are not perfect).

2) At least in criminal cases, you have the right to trial before a full jury, which is often provided in the appelate courts here. We don't put a teenager up for shoplifting before a full jury unless we have to.

3) Some courts deal with finding of facts, others deal with findings of law. Our supreme court never deals in findings of fact.

4) Often you may appeal on the court process aka technicalities. These may cause an appeal or a retrial, depending on where you live.

5) If you find new evidence based on the first trial, you may have another trial with a more complete set of facts. Note: This usually doesn't apply if you could or should have presented this evidence in a lower court.

The only real different philsophy is when it comes to double jeopardy. No civilized country allows people to be trialed multiple times for the same crime (e.g. DVD-Jon may now not be trialed again), but it varies who can appeal. In the US, only the defendant can appeal in criminal cases. In most western countries, both sides can appeal.

The upside to the US system is that you don't go through years in court if you should be found not guilty (assuming the jury was correct most of the time). The downside is that you don't get quick precedents because of unjust trials. That DVD-Jon was acquitted twice and not appealed to the supreme court is a huge precedent compared to him getting an acquittal in the lowest court.

Kjella

Re:Exactly, and what's the point of Appeal?

[Anonymous Coward]

The quick on us law
1.) almost all [I can't think of any that don't] lower us courts have 1 judge
2.) right to trial by jury [in most states] requires a potential 6 months sentence
3.) only the lowest court is a fact finder, but new facts can, in limited circumstances, be introduced on appeal.
4.) appeals usually require a showing of harm, technicalities are rare.
5.) Prosecutors have a limited right to appeal, but it is on VERY narrow grounds.
6.) Double jeopardy only applies to the same sovereign. ie, if the feds fail, the state may be able to get you.

Re:Exactly, and what's the point of Appeal?

[pmike_bauer]

I propose a slashdot-style mod system for the judiciary
...hilarity ensues.

Re:Exactly, and what's the point of Appeal?

[cswinter]

Mildly off-topic, but if judges and juries 'comprise' human beings what are the other permitted constituent beings. Under IP law (which this topic is about) 'comprise' is generally interpreted as being inclusive whilst 'consist' is exlusive. Thus as judges and juries can only be human beings, consist should be used.

BUT WAIT -this is a discussion of Australian IP law - the one major territory where comprise and consist are considered to mean the same thing so its OK

Re:Exactly, and what's the point of Appeal?

[jam3s]

Does anyone know the legal/moral/constitutional requirement for the right to apeal? Why is the appeal Judge / Jury's virdict considered any more or less valid than the original?

The appeals process is there to give fair and equitable access to the legal system to those who can afford it. In NSW, the full bench of the Supreme court is the supreme rulers. There decision is final, and tough luck if you want that overthrown.

The only higher court in Australia, is the Australian High Court, which very rarely sits. It is hard enough to be granted a session in the High Court let alone afford the costs associated of taking a case to the High Court. Decisions in the High Court overthrow the Supreme court.

If a decision is handed down in the High Court, it is final, and there is no review process for it.

Re:Exactly, and what's the point of Appeal?

[rainman_bc]

I'm not going to get too heated about this because there are probably very good reasons, but what exactly is the point of the "appeal" process.

You obviously don't understand science then. Every scientific finding is subject to peer review. So is every legal finding. Sometimes judges don't know what to do, and make a call that's incorrect. It can happen, and only a peer review can correct it. That's why the appeal process is the way it is. Sometimes it's important to be really, really sure.

Re:Exactly, and what's the point of Appeal?

[mirqry]

You appeal on a specific point from the original trial, you aren't just saying I want the case to be heard agian.

For example, if you think a piece of evidence was collected unlawfully you could appeal on that point. If the appellate court decides in your favor, they tell the lower court to re-decide/re-hear the case without that piece of evidence.

Re:Exactly, and what's the point of Appeal?

[J. Random Luser]

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.

Re:Exactly, and what's the point of Appeal?

[Mateo_LeFou]

"to help insure you are not convicted of something you did not do."

How much are the premiums?

Re:Exactly, and what's the point of Appeal?

[ArsonSmith]

Please see definition number 2:

Main Entry: insure
Pronunciation: in-'shur
Function: verb
Inflected Form(s): insured; insuring
Etymology: Middle English, to assure, probably alteration of assuren
transitive senses
1 : to provide or obtain insurance on or for
2 : to make certain especially by taking necessary measures and precautions

Re:Exactly, and what's the point of Appeal?

[Mateo_LeFou]

hm. i always thought that usage was a confusion with "ensure", of which the only definition is "to make sure, certain, or safe". Is this one of those misuses that is just so common it started getting accepted?

Re:Exactly, and what's the point of Appeal?

[Mateo_LeFou]

ooh: look! we're all sort of wrong: http://www.tiscali.co.uk/reference/dictionaries/en glish/data/d0081600.html

The SCO business model at work

[aweiland]

Since no one wants to buy our products, let's just sue!

Re:The SCO business model at work

[ScrewMaster]

Well, hey. It worked for SCO.

Didn't it?

Re:The SCO business model at work

[mumblestheclown]

Piracy justifiers like to have it both ways: First, they claim that IP models like selling CDs and so forth are "outdated." Then, they try to tell you that piracy HELPS sales because look at the record profits companies that sell bits in a box made last year. Which is it gonna be, today guys?

Re:The SCO business model at work

[Kjella]

Since no one wants to buy our products, let's just sue!

Insightful? Please. It could be "funny", given that big label music sells like hot shit. In addition, the SCO model is to claim license fees for thin air. There's no argument that the labels own the music in question, nor that there is mass piracy of the music in question, only who is liable. So how do you explain mass piracy of a product "no one wants to buy"? Unless you mean that there's lots of people who simply want to take it for free. But I assume that's not what you meant, because then your entire analogy to SCO doesn't work...

Re:The SCO business model at work

[aweiland]

It was supposed to be a joke.

The way Bush might deal with this

[CDMA_Demo]

Oh those are Judges from 3rd Wold Cuntries....

(Before I get flamed, remember he once hinted that Canada is 3rd world and so we shouldn't import drugs from them?)

Well, on the bright side

[RingDev]

I looks like we may be able to sue gun companies now. -Rick

Re:Well, on the bright side

[RingDev]

I type good. "IT looks like..." -Rick

Re:Well, on the bright side

[fandog]

They already do... and often.

USDOT fined for providing roads....

[ErikPeterson]

US department of transportation will be sued for providing "roads" used to comit many crimes such as drunk driving drug transport... bank robberies..... and the ever popular bounce the old lady down the street.

The USDOT denies being a gateway of evil...

http://donate-katrina.org/ - show your support donate ad revenue to katrina

Re:O.T. Text of decision against Irish ISPs

[Kjella]

How is this related to the Kazaa case?

Short summary: Irish ISPs forced to reveal subscriber information, the recievers can only use it for seeking compensation for copyright infringement, and they may not publicly disclose the subscriber information unless they take it to court.

I think this is stupid.

[yeruki]

Nothing's free anymore. If you don't pay, whatever it is, is shut down. But what I'm concerned about, is will they continue to sue the users?

Bittorrent vs Kazaa

[iomud]

Given bittorrents popularity at this point, even if kazaa gets back in business, is it really going to make a difference? It's obvious that bit torrent is being chosen by the tech masses as the next-big-internet-software-distribution-mode(tm).

Re:Bittorrent vs Kazaa

[Loether]

Actually I just read Edonkey has overtaken bittorrent.

http://www.vnunet.com/vnunet/news/2141724/crackdow n-drives-p2p-users

Re:Bittorrent vs Kazaa

[Simonetta]

Kazaa is used by millions of people who don't understand how to set up and use bit-torrents (myself included). Kazaa is the reincarnation of the original Napster.
    At this point, Kazaa is the world's public library although it is a little light on the European Classical, American Jazz, and world music. The people who most like these genres have yet to understand that their music must be converted to high-quality MP3 or OGG and made available on the Kazaa network if it is going to stay alive after the cultural holocast.
    Haven't heard of the cultural holocast yet? That's where the four global entertainment corporations get legal control of every piece of music ever recorded or published, put unbreakable DRM on every recording, then one-by-one throw away the DRM unlocking keys on the older recordings because the 'product' is 'not profitable'. Expect this to happen within twenty years (you are thinking long term, aren't you?) unless the brave and commendable illegal file sharers continue to preserve our world culture (yes, even Britteny...) for ourselves and future generations.
    There is no copyright anymore, it was the first casuality of the culture wars.

Mr. Whipple is dead

[Stanistani]

I guess there's no question who squeezed the Sharman...

*closes shell*

Not just the Aussies

[www.sorehands.com]

Most lawyers and judges do the same thing. If you read case briefs, you will see lawyers argue over the same case as being helpful to them or not helpful. You will also see different case decisions citing different lines out of a case to compare or to contrast that case to the one that they are citing. This is common.
You might want to think of it as two blind men describing an elephant from 2 different perspectives -- One describes it as a snake and another describes it as a tree.

In other news...

[Anonymous Coward]

...Al Gore, inventor of the Internet, is being sued by yhe MPAA, RIAA, and all other **AA's of the US for "inventing" the internet which can be used to steal copyrighted material, look at kiddie porn, and buy stuff from myunclestoehair.com. God is also apparently preparing for a legal battle based on his invention of sight, which can also be used to steal visual copyrighted works.

Re:In other news...

[Alphax.au]

...Al Gore, inventor of the Internet, is being sued by yhe MPAA, RIAA, and all other **AA's of the US

Al Gore is being sued by the GNAA too?

Good Riddance

[bleckywelcky]

Good Riddance to a bad piece of bloatware. I'll be happy to see Kazaa die. Although I may not be happy about the implications.

Oh Really?

[Nom du Keyboard]

The music industry seems to think it'll be able to get billions of dollars in damages out of the company

I'd like to see how this is going to happen. If they had that much money, I'm sure they would have had a better defense in court.

The music industry seems to think lots of things, but this sounds like a Blood from a Stone sort of battle to me.

Re:Oh Really?

[shark72]

"I'd like to see how this is going to happen. If they had that much money, I'm sure they would have had a better defense in court."

A company for which I worked was deep into talks with Kazaa for advertising on their service a couple of years back. The contract wasn't for a particularly long time but Kazaa wanted well into the six figures. This was around the time that Kazaa was running those "Join the revolution" full-page ads in the NYT.

The commentary on the court case also went into some detail on Nikki Hemming's luxurious house. The consensus seems to be that Kazaa has reaped hundred of millions of dollars. This seems accurate to me.

Or Maybe

[Nom du Keyboard]

The music industry seems to think it'll be able to get billions of dollars in damages out of the company

But they'll settle for $7,500 and a promise not to offend again.

Appealing?

[mcrbids]

Will Kazaa be appealing in 2006? It's been a LONG time since I found Kazaa appealing...

PS: AllOfMP3.com gets my vote - and it seems to be perfectly legal...

I thank you for yoUr time

[Anonymous Coward]

First organiza7ion

MOD PARENT UP

[Fareq]

Parent is correct.

The Jury (or judge in a bench trial) find fact. They evaluate the evidence and make a determination.

The facts are not re-tried in an appeal. In an appeal, you argue whether the legal proceedings were conducted according to law, whether the jury was given the correct instructions, or if there was any bias, or if the judge's interpretation of the law was correct.

You can appeal on many different and interesting grounds. But you can not appeal because the fact found was wrong.

Want a good laugh?

[serutan]

In another article on this, a record company spokesman is quoted:
"We're disappointed they won't accept the umpire's decision. It can't be fair to build a business on somebody else's work," he said.

I'm not a doctor and I don't play one on TV, but I know Unbelievably Blatant Hypocrisy when I hear it.

How do you pay?

[Anonymous Coward]

I have been a customer of allofmp3.com in the past, and always used "mall" pre-paid Visa cards.

Last time (a few weeks ago) I could never get it to go. Did something change?

Civil Suits

[nurb432]

You can pretty much sue anyone for anything when it comes to civil cases.

You may lose the actual case, but if you can manage deplete their resources along the way, who really lost?

How do they figure the amount of damages?

[beyonddeath]

They're already sueing customers left and right, and now kazaa. How can they sue the users of kazaa for damages and the makers of kazaa. Isnt this kind of fighting both sides of the argument? not to mention getting paid twice for haveing a file stolen once?

Im happily on Gentoo and using opensource software nearly exclusivly as i dont feel these business practices are ethical. Im voting with my wallet, why dont you?

Kazaa and my copyright

[mshurpik]

Kazaa is a notorious, deeply entrenched spyware author; their insipid content delivery system is a mere shadow of the service's true nature, which is to infect your computer as badly as AOL Instant Messenger or as ruthlessly as Real. It is a useless service, anybody who wants to download mp3s deletes Kazaa immediately and goes for something else.

Should I be happy Kazaa is getting sued for "copyright infringement?" It's true, Kazaa infringes on a lot of copyrights. Their spyware infringes on my personal data, copying off as much as it can, in secret, while also shredding copies of my system files. Kazaa both retrieves personal information from my computer, and deletes and re-routes other data to gain access and stay there.

In other words, downloading mp3s from Kazaa requires the installation of viruses, thus mp3s are proof of infection. If the music industry can sue Kazaa for putting viruses on my computer, can I do the same or do I have to author the virus?

Re:The 'rights' of women under hollywood law

[EternityInterface]

Damn terrorists... we need to inject democrazy bombs there and fill their women with liberty silicone! They look a little skimpy too, some freedom fries would do them good.