p2pnet.net News Feature:- The Kazaa Saga in Australia is offline, so to speak, until March 22, 2005.

When it finally ends, who’ll be the winner?

ARIA singer Delta Goodrem? ARIA band Powderfinger? ARIA Melbourne rockers Jet? The lawyers on both sides?

Alex Malik, an ex-ARIA in-house lawyer and former senior legal officer at the Australian Communications Authority, Canberra, describes the last day of the Kazaa vs ARIA hearing on December 28, 2004

Read on >>>>>>>>>>>>>>>>>>>>>>>>

Thank you for the music – everyone can be a winner in ARIA vs Kazaa
By Alex Malik

As the computer screen flickers in the corner of the courtroom, the eyes of almost the entire room are glued on the large viewing screen behind the computer. The screen demonstrates the simplicity of downloading music from the Kazaa web site. The well- dressed gallery collectively crane their necks to watch the spectacle, mobile phones on silent, SMS at their fingertips. Lawyers for the respondents such as Sharman Networks and Altnet watch, perhaps with some disdain. Justice Murray Wilcox leaning forward is watching with great interest.

Poor Delta.

Poor Powderfinger.

Poor Jet.

Poor recording industry.

The instigator of the show, Tony Bannon QC, is not watching. He has set up the demonstration on behalf of the applicant, Australian Recording Industry Association, and past rehearsals tell him what the audience is looking at. Meanwhile, he is looking in the direction of Tony Meagher SC and Steven Finch SC, who are representing some of the respondents. Perhaps the glare from the nearby computer screen is causing him to turn away, perhaps Mr Bannon is allowing himself a moment to gloat as ARIA’s case unfolds smoothly.

In the meantime, 15-year-old Andrew Jones [real name withheld to protect him from the recording industry] is on school holidays. He sits in the family home in Kaleen and he is downloading Vertigo by U2. He wants to hear the track in its entirety before he spends the $26 to buy the new U2 CD as a Christmas present for himself. It has to be better than the greatest-hits compilations by Robbie Williams, Britney Spears and the 10-second television pop stars he’s received. He logs onto the Kazaa website and downloads the track. The process is fast, easy and aside from the cost of his Internet connection and electricity, it is free – and probably illegal.

Unlike as is happening in the United States and other countries, people like Andrew are not being sued for downloading music without the permission of the copyright holder (in the case of U2, it’s Universal Music Australia). ARIA has chosen to go down a different road. It is suing the companies and people who they say are behind the Kazaa peer-to-peer file-sharing system – the system it says that allows people to illegally download music.

According to the companies behind Kazaa, suing Kazaa is analogous to suing the makers of a photocopying machine because some people may use the photocopier to copy entire books or magazines, which may be copyright infringement. They also say Kazaa is like Google, Alta Vista or Yahoo – a search engine that merely directs people to the location where music files can be found.

Unlike the earlier Napster system, which was declared illegal in the US, Kazaa does not store music files on a centralised server. This means that when Andrew downloaded Vertigo, he didn’t obtain the track from the proprietors of Kazaa, or from some mega- sized computer located in Vanuatu or Norway. Andrew downloaded the sound recording from other Kazaa users who are Andrew’s "peers" and, like Andrew, are participants in a peer-to-peer community. Perhaps Andrew obtained the sound recording from Zsolt in Budapest, or Shinichi in Osaka, or Janet in Dayton, or all of them. Kazaa’s proprietors argue they can’t control the behaviour of Andrew, Zsolt, Shinichi or Janet, nor can they control or filter the content made available through Kazaa.

The Federal Court in Sydney is far- removed from the Jones* house in Kaleen. Yet the Federal Court’s decision will have ramifications in Kaleen and everywhere else that people use the Internet, and remember – Canberra has the highest level of Internet usage in Australia.

ARIA has argued that Kazaa should be shut down through the imposition of a permanent injunction. They have invoked the names of Delta, Powderfinger, Jet and other recording artists from the ARIA charts in support of their arguments. Funnily enough, Delta hasn’t turned up to court. Neither has Kylie, Dannii, Britney nor anyone else with an optional surname. In fact, no pop stars and few record company execs have turned out to support ARIA, their representative organisation.

While "piracy" (ARIA’s generic term for all copyright infringement) is a serious problem, will shutting down Kazaa solve it all? Hardly. Andrew will still be able to use eDonkey, BitTorrent, MP3 websites, music "forums" and hubs (ask your kids!) to get his fix of "free" music, if that’s what he wants. But Andrew will probably keep buying CDs like everyone else. According to the Undercover website, in the week ending December 13, a record-breaking 244,759 Top 10 CDs were sold across Australia. Does this sound like an industry in crisis?

Altnet and Sharman argue that ARIA has no right to try to control the Internet and impede the development of new technology. Altnet’s solution is to use existing technology to reduce piracy. They say ARIA’s members should license their content to Altnet, so that sound recordings from big record companies can be placed on the Kazaa system, so that they can be purchased by consumers as paid downloads. A system of digital rights management will ensure that these files will be protected and it will not be possible to illegally copy them once they have been downloaded. They point out that over 100 smaller recording companies, including Richard Branson’s V2, have already executed license agreements with Altnet, and thousands of sound recordings already appear on Kazaa as legal, protected "gold files". If more authorised files appear on Kazaa, it will make it even harder to find unauthorised files.

After three weeks of intensive hearings and a case that started in February 2004, the parties are on their summer break until the case resumes for closing arguments on March 22, 2005.

It will be a hot, restless summer for many of the participants. Even if ARIA succeeds in these proceedings, Internet-based piracy will not be stamped out. If Altnet and Sharman succeed, they will still not have the license agreements in place which would allow them to sell digital downloads.

So far, the only winners in this case appear to be the lawyers charging in six-minute increments.

Delta will need a lawyer to negotiate contracts, if she’s planning to conquer the US in 2005.

I know where she can find a bunch of them.

==============

Malik is in the final stages of a PhD in Law with a specialisation in intellectual property rights enforcement at the University Of Technology, Sydney.

This entry was posted on Monday, January 24th, 2005 at 3:02 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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