Geist on Kazaa ruling
p2pnet.net News View:- Earlier today an Australian court ruled in favour of the music industry in its copyright infringement suit against Sharman Networks, the company behind Kazaa. I won’ t venture into providing an analysis of Australian law; see Kim Weatherall’s excellent, quick analysis of the case, which notes that this decision is bad for innovation.
My pre-decision comments, which focused on the diminishing market share of Kazaa and the prospect for an appeal regardless of how the decision unfolded, remain unchanged.
From a Canadian perspective, the case highlights a growing divergence between Canadian and Australian copyright law such that the outcome of a similar case in Canada could potentially be much different (more on that at our comparative conference later this month in Ottawa).
Some of the differences between our two laws are obvious; for example, the existence of a making available right in Australia but only proposed here in Bill C-60. The more important distinction in this case, however, involves the question of authorization (or authorisation). Critical to today’ s Kazaa decision was reliance on the test developed in Moorhouse, an Australian case, for determining authorization. The court concluded that Sharman Networks, along with several of its directors, met that standard. While acknowledging the existence of legal warnings against copyright infringement, the court was troubled that “Sharman took no steps to include a filtering mechanism in its software, even in software intended to be provided to new users.”
The Supreme Court of Canada considered the authorization issue last year in CCH v. Law Society of Upper Canada. The Canadian court explicitly rejected the Moorhouse test, concluding that “Moorhouse is inconsistent with previous Canadian and British approaches to this issue. In my view, the Moorhouse approach to authorization shifts the balance in copyright too far in favour of the owner’s rights and unnecessarily interferes with the proper use of copyrighted works for the good of society as a whole.”
As for the application of authorization test, the Canadian Supreme Court stated that “a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement.”
In other words, under Canadian law, Kazaa would be entitled to presume that its services are being used lawfully consistent with its legal terms. Could the music industry rebut the presumption against a Canadian Kazaa? Hard to say. It might prove to be a challenge given questions about whether downloading for personal purposes constitutes copyright infringement in Canada and the evidence needed to show a relationship or degree of control that rises to the level of authorization under Canadian law.
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at michaelgeist.ca.]
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September 6th, 2005 at 1:37 pm
Here we go again…the CRIA trying desperatly to impress it’s RIAA’ers….Yo CRIA! Isn’t it better when our privacy laws are gone since then you can then sue the ppl all you want. I think this and scrapping privacy is a one way ticket feeding to the RIAA/CRIA’s hand and be able to sue and throw ppl into jail…
Isn’t it time to end this crap once and for all….
September 7th, 2005 at 12:50 am
So, an Australian court ardered Kaaza to add a filter.
I am troubled by any filering requirement that prevent any p2p sharing of public domain works. Clearly any filtering mechanism that stops the sharing of public domain music is operating againt the law and/or the public interest.
Even determining if a work is public domain through software is an impossible task, since music files (mp3 or whatever) never have a public domain flag or any information that states that the music is not public domain or on what year, which could be next year, the work becomes public domain and may be shared freely.
I beleive the court requested something that is impossible. Easier sasd than done,
Rafael Venegas
http://www.gvenegas.com
September 9th, 2005 at 2:59 am
One thing we can be sure of; all those so called academics who specialised in the ‘theory’ of p2p and are exposed or at least have their positons terminally confounded for want of reality will have to declare the Kazaa judgment bad for innovation. The mental gymnastics required include ignoring the judge’s comments about not wanting to prevent legal activity and the two month period in which Kazaa can amend its software.
September 9th, 2005 at 1:54 pm
So, the court thinks that a filtering system can be set up so that copyrighted works are not shared or that only public domain works can be shared. This is interesting because this is not a new requirement. Radio and television and other venues are supposed to have a filter system so that they do not broadcast or perform unlicensed songs. But guess what? They have no filtering system at all and as a result infringe songs by using them without a license.
How performance licensing works is simple. For example, a radio station pays ASCAP or BMI or another performance rights organization (PRO) for a license that allows the station the use of the songs in the catalog of PRO and the PROs affiliated to the licensing PRO. For example a song that is not in the American PRO catalog may be in the afilliated French PRO catalog. Thus, if the song is found in any of the 50 or so catalogs, it may be performed. But the radio station does not get a a copy of any of the many catalogs they may need to check before using a song. This is a big mistery that no one has been able to explain: How are songs to be checked against agains the 50 or so catalogs that are not on hand?
Recently I read where a PRO (ASCAP) reached a licensing agreement with a BUS trade association so that the music licensed by the PRO could be played in the buses of the many bus companies belonging to the bus association. I imagine this is how that works out. A bus driver places a CD in the CD player, pushes the button and the music is played in the bus. The only problem is that the bus driver (or the Bus comany) has no way of knowing which tracks on the CD can be played with the PRO license and which track cannot be performed, since thre CD tracks do not say which PRO licenses which song (a good idea since the PRO of a song can change at any time). Also if the driver, instead of driving is more concerned about not infringing songs and a song catalog, he may drive the bus into a ditch. Certainly bus safety cannot be superceded by a desire not to infringe songs.
My connections in the radio industry tell me that the PRO licensing is nothing more than a scam in which the radio stations have allowed the PRO extorsion so as to survive and that no filtering is really done.
The PROs and the radio industry has had many years to develop and iron out a filter so as not to infringe songs and have atterly failed.
Some basic questions we must make:
Who thinks that the Internet can do what the PROs and the radio and their batallion of lawyers have not been able to do in many years of operation?
Who is the Australia court kidding in the KAZAA case? Didn’t anyone explain this to the judges?
A point: The vast majority, I guess over 99 percent, of literary and musical works that have been created are in the public domain. The rights to these works belong to the people and it patently unfair that the people cannot freely share these work on the Internet because a tiny fraction of all works have owners and their interest are overiding.
Rafael Venegas
http://www.gvenegas.com
September 9th, 2005 at 7:46 pm
We know that RIAA goes after p2p file sharers. But RIAA does not go after the radio stations that play their recorded songs without licenses because of the unworkable PRO licensing and verification system as decribed in the previous posting. Technically, when a radio station (or a bus driver) plays a song that is not licensed by the PRO the song is infringed.
The answer is simple: The infringement by radio stations increases the sale of the performed recording.
Still, one class of massive easily preventable infringement for profit, by radio station and other venues, should not be allowed while p2p sharing with its unavoidable infringement is attacked as theft.
I am surprised that this angle has not been visited by the p2p “press”.
Rafael Venegas
http://www.gvenegas.com