LawFont.com

The Australian is reporting that lawyers for MIPI will seek an order from the Federal Court to shut down the Kazaa network, because Sharman has failed to implement keyword filtering that it was required to introduce.

There are some interesting issues arising from the move, which are likely to turn on the definition of “authorising” infringement.

Sharman will likely argue that, by cutting off Australian users from the Kazaa network, no infringement can take place in Australia. The counter argument would be that filtering will not be wholly effective, as users are likely to be able to find some way around it. Hence there would be some continued authorisation of infringement.

MIPI seems likely to argue that Sharman must implement keyword filtering. However, it seems that such an approach may equally be capable of being circumvented – a track containing “Madonna” might be blocked, but would a filter necessarily be able to detect something like “M_@dd0_nna”, or a similar scrambling? Moreover, the unanswered question is how narrowly-tailored they would be. If the filters operate too fuzzily, will they block legitimate, non-infringing files? What about an as-yet-unknown band whose first single, which they have released to gain publicity, contains the name of a musician or group on the target list – which is not all that hard to do given how many names of music groups are simple nouns. (And if you erred the other way, to be safe, you’d have to have a made-up or distinctive name, such as Metallica or the Beatles. Poor old “The Cars” or “The Cure”).

The interesting thing is that it does not seem that filtering is required by the court. I haven’t read a copy of the final orders as entered, but presumably they reflect this part of the judgment:

520 … There needs to be an opportunity for the relevant respondents to modify the Kazaa system in a targeted way, so as to protect the applicants’ copyright interests (as far as possible) but without unnecessarily intruding on others’ freedom of speech and communication. The evidence about keyword filtering and gold file flood filtering, indicates how this might be done. It should be provided that the injunctive order will be satisfied if the respondents take either of these steps.

521 Accordingly, I propose to make an order restraining the six infringing respondents from further infringing the applicants’ copyright in any sound recordings by authorising the doing in Australia by Kazaa users of any infringing acts, in relation to any sound recording, the copyright of which is held by any of the applicants, without the licence of the relevant copyright owner.

522 There will be orders providing, in effect, that continuation of the Kazaa Internet file-sharing system will not be regarded as a contravention of the general injunctive order if the system is first modified, in a manner agreed by the applicants or approved by the Court, to ensure keyword filtering or gold file flood filtering. To allow this to happen, the operation of the injunction will be stayed for two months.

That seems to suggest that a system of filtering will — if approved by the court — definitely result in a finding of non-infringement of the injunction. It does not rule out another means that the court might also accept results in Sharman ceasing to “authoris[e] the doing in Australia by Kazaa users of any infringing acts”.

Interesting…