The expected three week long trial of Kazaa continued in Sydney, Australia with the music industry seemingly holding the upper hand by the end of the week. Major record labels, Universal Music Australia, EMI, Sony/BMG, Warner, Festival Mushroom and 25 additional applicants are suing Sharman Networks and associated parties–including Altnet, which delivers so-called “piggyback” technology with Kazaa, Altnet associated Brilliant Digital Entertainment, Sharman CEO Nikki Hemming and Altnet chief executive officer Kevin Bermeister and two technology directors–over alleged music copyright infringement made using the Kazaa software.
The labels hope to stop illegal P2P file sharing and to recover compensation for past infringements, says Michael Speck, general manager of the Music Industry Piracy Investigations unit of the Australian Record Industry Association.
The best coverage of the trial has come from Garth Montgomery’s lighthearted daily blog at Australia Personal Computer Mag where complete transcripts of the days proceeding are made available as PDF downloads as well as the writers rants and what he calls “anti-journalism’ pokes at applicants and respondants alike. He also deserves the credit for coining the term Kazaagate .
Music industry attorney Tony Bannon told Australian Justice Murray Wilcox that ownership of Sharman, which has been kept secret through its registration on the tax haven island of Vanuatu, is in fact controlled by Kevin Bermeister, CEO of Kazaa partner Altnet. Bannon said there is “ready inference that Kevin Bermeister is in fact the ultimate controller of Sharman,” ZDNet reported.
The music industry presented a number of key witnesses in effort to prove that Kazaa could indeed filter out copyrighted material despite denials to the contrary. Nigel Carson, a computer forensics investigator from KPMG, testified that it is possible to locate the physical computer and user of the machine by tracing the IP address. Carson said that if a company like Sharman Networks wants to trace a specific user who shared unlicensed music files, it would need to store the date and time that the transaction was done.
More potentially damning was the evidence given by Tom Mizzone, vice president of data services at New York-based MediaSentry who had been hired by the RIAA in March 2003 to search Kazaa for users located in Australia and download evidence they were swapping copyrighted material. Up to 600 scanners were turned to the task, and the internet addresses of the users recorded and checked against a database of internet service providers in Australia.
The court also heard that the major record labels were engaged in a program of actively disrupting the file-sharing network by bombarding it with billions of decoys and spoofs that pose as song files. The success of the spoof war meant as few as 7 per cent of a given artist’s tracks found on the network were usable, according to record industry memos.
Mizzone said that MediaSentry is also able to detect the copyright-infringing music files made available for download in the Kazaa system’s shared folders. He told the court that his company is doing what any ordinary user of the Kazaa system is able to do. Aside from detecting files, he said, they can also communicate with the users via the applications built in instant messaging.
Kazaa’a main defence inevitably seemed to rest on the previous legal precedent set in the 1980s. The much used Sony Corp. vs. Universal City Studios ‘Betamax case’ ruling in 1984 which said electronics giant Sony wasn’t liable when people used its Betamax videocassette recorder to copy movies illegally because the technology had significant uses that did not violate copyrights.
Federal Court Justice Murray Wilcox dumped 12 of the 14 of the respondents’ affidavits for the civil trial, saying they were not relevant to the case about copyright infringement. The rejected affidavits contained details of how Kazaa could be used to exchange legitimate materials. Wilcox said he agreed that Kazaa could be used for the sharing of licensed materials and that court time should not be wasted discussing the issue.
Judge Wilcox set aside Sharmans objections on Friday against more potentially damaging alegations in an affidavit containing a report from Dr. George Barker, director of the Australian National University’s Center for Law and Economics, Intellectual Property and Copyright.
According to the report, the Kazaa system is a “marketplace” that brings together people who have copyrighted works and people who want to make unauthorized copies of those works. The report adds that Kazaa “designs the rules, facilitates the ‘market’ for exchange of copyright works, and enforces or has the capacity to enforce the rules of that market.”
US. technical experts were due in Sydney over the weekend to debate whether its song files could be filtered to restrict the illegal flow of music on Kazaa’s “peer-to-peer” network on the Internet, the Sydney Morning Herald newspaper said on Saturday. The trial continues on Tuesday.
Further Coverage
Daily Despatch-KazaaGate [APCMag.com]
ZDNet Australia:Hot Topic, Sharman [ZDNet.com.au]
Report Asserts Kazaa Makes the Rules [CNet News]
Sharman Counter Attacks [MacWorld.co.uk]
US. Experts to Examine Filtering Web Songs [SignOnSanDiego.com]
Trial to Unmask Kazaa Owners [Wired.com]
Kazaa Faces Allegations in Copyright Trial [NewsFactor.com]
Witness Assaults Kazaa Filter Claims [CNet Asia]
Related Reading
Appeals Court Holds Grokster Not Liable [PCWorld Australia] August 2004
Digital Piracy – Definitive P2P Piracy Figures for Year 2003 [ITIC.ca]
RIAA, MPAA Appeal Against ‘Grokster is Legal’ Ruling [the Register] August 2003
Judge:File Swopping Tools Are Legal [CNet News] April 2003
File Swapper Eluding Pursuers [Washington Post] Dec 2002
Napster vs. the Music Industry [HK-Lawyer.com] June 2001
RIAA v. Diamond Multimedia Systems Inc. [Gigalaw.com] June 1999
RIAA, Diamond Sweep Away Suit [Wired.com]
Enforcement Bots-Who Does the Dirty Work? [No-ip.org]
CBS Songs Ltd. v. Amstrad Consumer Electronics 1988 [Xenoclast.org]
