Record Industry Lawyers Make Big Mistake in KaZaa Case

By Jon Newton 11/26/05

As the members of the Organized Music family, Sony BMG, Vivendi Universal, Warner Music and EMI, struggle fruitlessly to gain total control of how, and by whom, music is distributed online, it's one embarrassment after another, lately.

Their claims that their bizarre sue 'em all marketing campaign is resulting in both increased business for the corporate online music services, and significant reductions in the numbers of people using the p2p networks, have repeatedly been proved to be as empty as their assertions that they have customer interests at heart.

Jon Newton

The Sony BMG Digital Restrictions Management (DRM) disaster, under which the cartel member was caught red-handed trying to plant secret DRM spyware on customers' computers, was irrefutable evidence of the low esteem in which Sony, for one, holds the people who keep it fat and happy.

Now a lawyer representing OM's ARIA (Australian Recording Industry Association) has succeeded in turning what the labels had hoped would be a seal of approval for the RIAA's (Recording Industry of America) Audible Magic 'filter' for controlling the p2p companies into yet another major PR disaster.

An Australian court had given Sharman Networks, owner of the failing Kazaa p2p application, the users of which have appeared on so many RIAA subpoenas, a December 5 deadline to build a keyword filter system based on words supplied by the Big Four. Or else.

They would then conceivably have tried to use it to force the music industry's only competitors, the indie p2p companies, into conforming to OM demands, whatever they may have been.

But then Michael Williams, a lawyer acting for Big Four Oz 'trade' group, the ARIA, blew it.

As a p2pnet source in Australia put it, "Yesterday the Kazaa case was back on for a post judgement hearing. Strange experience. The judge [Murray Wilcox] absolutely blasted the record company's lawyer for walking out of an expert's conclave which was intended to be a gathering designed to apply a filtering solution to the problem of infringement."

But even if December 5 deadline hadn't been cancelled, as frequent p2pnet poster and OM victim Rafael Venegas says, "I doubt very much that a filtering solution will be found by programmers unless all digital files have a required integrated ID and copyright status data (which they don't have at present). Then if the integrated data is modified to fool the filter, the filter will be fooled.

"No wonder the lawyer did not show up to a 'filtering solution' conference.

"The music industry is in a bind. Any attempts to stop all file sharing would be illegal because many works are in the public domain or the owner allows sharing and copying. And no filtering system will work if the files do not have the required ID and copyright status data.

"There is no way out other than a radical change in the way music is licensed and authors are paid for their work when files are shared on the Internet or copied at home."

Venegas also says, "Anyway, a filename based filter would only be an utter failure, as filenames will simply be changed before uploading and then again after downloading, or playback programs can be made to recognize and play back real mp3 files regardless of the extension name."

Meanwhile, yesterday, we ran the Sharman press release centering on the latest Organized Music phk-up.

Here's the pre-release draft of the Sharman statement and as our source says, "I don't know why they went away from the original press release. For once it would've worked for them!" Under it is a fly-on-the-wall transcript of what happened during the behind-closed-doors conclave.


November 25, 2005

Record company lawyer shoots himself in the foot

The Australian Federal Court yesterday granted Kazaa a reprieve after hearing that the record companies' lawyers had walked away from the court-ordered technical process. (1)

During the hearing Justice Wilcox indicated that he was "extremely angry" with Mr Michael Williams' treatment of a Federal Court official overseeing the technical process.

Justice Wilcox indicated that Mr Williams had "shot himself in the foot" by aborting the court-ordered process.

A first technical meeting had been held with considerable success, with Kazaa seeing this as the first step towards establishing a business that would gain from the record companies the licenses it had always wanted.

Kazaa was granted an extension to deal with the technical issues until late February 2006, despite objections by the record companies.

The court also rejected, out of hand, an attempt by the record companies to obtain damages after their barrister indicated that he would be seeking $200 m.

A spokesperson for Sharman said the action of the record companies in rejecting the court ordered meeting reveals their true intention is not to foster legitimate business as envisaged by the court, but to shut down Kazaa and rid themselves improperly of a competitor.

As a result of yesterday's rejection by the Court of the record companies' submission, consumers will be able to enjoy the Kazaa experience at least until the appeal is held, in late February 2006.

For more information, please contact:

Julie Fenwick, ICON International Communications
+61 2 8235 7600 (work)
+61 423 174 424 (mobile)

(1) The court in handing down its judgement on 5 September 2005 made a landmark ruling ensuring the survival of Kazaa by recognising that its legitimate business should be protected and afforded the opportunity of a time frame in which parties could agree to a protocol. This operating protocol was to be agreed between the parties. This would allow the respondents to adjust their operations so that they could continue.


Jon Newton is the editor of and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge you to explore it.

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