AOH :: PT-1114.HTM

Kazaa loses copyright case in Australia, some analysis

Kazaa loses copyright case in Australia, some analysis
Kazaa loses copyright case in Australia, some analysis




-------- Original Message --------
Subject: grokster & kazaa
Date: Wed, 07 Sep 2005 16:10:01 +1000
From: Matthew Rimmer  
To:  

Dear Declan McCullagh,
Hi there.  I am a copyright academic from the Australian National
University.

Just a couple of things:

[personal note snipped]

*  Of possible interest to Politech, the Kazaa decision has been handed
down in the Australian Federal Court:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1242.html 

Some good academic responses by

Dr Kathy Bowrey - http://www.chickenfish.cc/lic/index.php?itemid=10 

Kim Weatherall - http://weatherall.blogspot.com/ 

Lots of media commentary:
Needham, Kirsty.  "Music Industry Banks On Opening of Online Store",
The Sydney Morning Herald, 7 September 2005,
http://www.smh.com.au/news/technology/music-industry-banks-on-opening-of-online-store/2005/09/06/1125772527482.htmlHayes, 
Simon.  "Day The Music Died", The Australian, 6 September 2005, p 29,
http://australianit.news.com.au/articles/0,7204,16502386%5E15306%5E%5Enbv%5E,00.html 
For what its worth, in my opinion, the Kazaa judgment suffers from a
few weaknesses and flaws in terms of its reasoning.

The first problem with the judgment is that it is highly fact specific.
Although he makes heroic efforts, Wilcox J seems overwhelmed by the mass
of detail in the trial.

The second problem with the decision is that it fails to articulate
clear principles as to what constitutes authorisation. Wilcox J suggests
that there are a number of factual indicia that might support a finding
of authorisation - knowledge of infringement; a failure to install
proper filters; and a misguided public relations campaign 'Join the
Revolution'. However, he provides little guidance for technology
developers and entrepreneurs in other factual scenarios - for instance,
the developers of the iPod, TiVo, Foxtel iQ, and Slingbox.

The third problem with the decision is its failure to address wider
policy concerns. Wilcox J neglects to discuss the origins of P2P
networks, and consider comparative law on the subject properly. He
refuses to address wider policy concerns about competition and consumer
rights. Wilcox J was perhaps overly conscious of the inevitability of an
appeal.

One can only hope that the appeal court seeks to remedy the crude
nature of Australian law on authorisation of copyright law.

Regards,
Matthew Rimmer

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