KaZaa Loses in Australian Court

By Richard Menta 8/28/05

The verdict is in and the courts in Australia have ruled against KaZaa.

The Sydney court ruled that use of the file sharing application constituted a breech of artist's copyright. It did not order the service shut down, but it did order that Sharman Networks, the owner of KaZaa, modify its software to stop further infringement.

KaZaa claimed during the trial that it had no control of users actions on the service and therefore were not responsible for the content transmitted. The company stated that use of their application was no different than the use of an audio tape recorder or VCR.

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The court did not accept this argument. Said Federal Court Judge Murray Wilcox "The respondents authorized users to infringe the applicants’ copyright in their sound recordings," Wilcox further added that KaZaa's activities "would be to encourage visitors to think it 'cool' to defy the record companies by ignoring copyright constraints". These statement imply that Wilcox took into consideration the recent US Supreme Court ruling that stated P2P services are liable if Active Encouragement is evident.

Wilcox in his decision also ordered Sharman to pay 90% of the record company's legal costs, an added blow to the company.

Wilcox dismissed the record industry allegations that KaZaa and its managers committed copyright infringement themselves, rather the service aided and abetted the infringment by others. The justice then said that KaZaa can remain operational if it met one of two conditions. These conditions are that the service either run a white list where only specific identified content is allowed to to be traded or that KaZaa creates a blacklist (using "non-optional key-word filter technology" said the justice) that blocks copyright content from successfully navigating across the service.

Judge Wilcox then put the onus on KaZaa to put maximum pressure on existing users to upgrade to the newest version of the application that support these scrubbing technologies.

Another hearing will determine the damages Sharman must pay to the record industry. Sharman has said it will appeal the ruling.

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