LawFont.com

Some more links to peoples’ comments on Kazaa:

1. a couple of articles are available on Online Opinion: including this piece by Stephen Peach (ARIA), and this piece by Stephen Abood.
2. Michael Madison’s views (University of Pittsburgh) – interesting comments comparing US and Australian approaches to legal development.
3. Phil Tripp’s views are here (Tripp is a music business type person, and runs the website themusic.com.au, a news/commentary portal for music biz)
4. Brendan Scott’s views here (pdf)
5. Ed Felten’s comments on Kazaa are here.
6. Kathy Bowrey’s Comments (and comments on many other digital copyright and ‘piracy’ issues) here.
7. David Starkoff (recommended – don’t agree with him on everything but it’s an interesting view);
8. IPKat (just saying it seems a sensible result. Of course, that’s not the issue – the issue is the reasoning, which is problematic for reasons I’ve outlined and Matt Rimmer has also underlined in his comment on this and Geists’ blog, quoted in Starkoff).

David differs from my comments on the Wilcox J orders, saying:

‘on reflection, I think this is Wilcox J’s attempt to provide certainty to the parties. Paragraph 4 of his proposed orders is the usual and expected injunction, par 5 provides that certain conduct (based on Wilcox J’s findings) will not be taken to infringe that injunction. I think it is Wilcox J’s attempt to avoid ongoing supervision, by setting out a practical way that the Kazaa network can continue to operate without being liable for contempt of court.

I take David’s point, which is of course ‘backed up’ by the fact that the judge did not accept every step or action that the copyright owners wanted Kazaa to take – he has singled out just two as things they must do (he did not, on the other hand, suggest that Kazaa start taking down full identity details of its users for the purposes of future prosecution, nor did he accept that Kazaa should bring legal action to enforce its End User License Agreement).

On the other hand, by not stating what actions by a technology provider are, or are not, authorisation, and instead singling out things to do – by not articulating a clear rule, something both Rimmer and I have commented on – Wilcox J has arguably left everyone in the dark a bit and made ongoing supervision inevitable. Wilcox J has said a couple of things that Sharman must do but what would happen, for example, if such actions were taken and were to prove (inevitably) ineffective? Could the copyright owners come back and say those actions are not working, but Kazaa is still authorising infringement? The orders do include a ‘liberty to apply’ (for further orders). Or are we to read the orders as being the ‘rule’ we look for in vain in the judgment – the ‘this is what technologists (including Kazaa) must do to avoid infringing?’ Is this Wilcox J’s final word on the limits of what any technologist (including Kazaa) should have to do? It’s not clear to me – I’ll have to have another read.

Another interesting thing about some of the commentary around is this view that ‘oh, well, it doesn’t matter because Kazaa is dead/not popular/less important than eDonkey or BitTorrent anyway’. On one level, well yes obviously – if technology has moved on, then the judgment on the facts becomes less important.

On the other hand, the principle remains and can be used – in litigation or in threats of litigation – against other parties. That is, of course, the point of bringing test cases, especially against obvious ‘bad actors’ like Kazaa.

The force of that threat is reduced by the highly fact specific nature of the judgment, and Wilcox J’s failure to state any particular principles or rules. Wilcox J has bent over backwards to underline that his judgment applies to Kazaa’s conduct, and not necessarily anyone else’s. Technology innovators could quite readily come along and distinguish themselves on any number of bases. But will they? When faced with a battalion of barristers (6, no less, including two silks)?