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Kazaa Appeal Likely In 2006 108

Posted by Zonk from the not-so-fast dept.
daria42 writes "Although the company behind Kazaa has already vowed to launch an appeal of yesterday's decision that it had breached music industry copyright, it now appears likely any such appeal will have to wait until early 2006. The music industry seems to think it'll be able to get billions of dollars in damages out of the company, Sharman Networks, although the amount has yet to be decided - and who knows if they can pay." From the article: "Sharman Networks is expected to lodge its request for leave to appeal before the deadline of three weeks from yesterday's decision expires. Sharman's lawyer, Mary Still, reiterated through a spokesperson today the company's position last night that it would 'appeal those parts of the decision where we were not successful' remained unchanged."
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Kazaa Appeal Likely In 2006 More

Kazaa Appeal Likely In 2006

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  • Does anything happen fast in the legal relm?
  • I think at this point it will be hard to change people's mind, so long as they know about this. It is like the last election: People will take a stance and not move, and there will be precious few neutral or swing states (or people).
  • Having to wait until 2006 is going to cost them alot. Of course, this case will be used as a landmark decision for cases in other countries besides Australia...

  • I'm no lawyer but... (Score:5, Interesting)

    by SillySnake ( 727102 ) on Tuesday September 06, 2005 @04:16PM (#13493537)
    But if they are going to be sued by every music company on the planet, can't they just declare bankruptcy and dodge the whole thing? I've known of companies here in the USA that do it, though on a much smaller level.

    • Re:I'm no lawyer but... (Score:5, Insightful)

      by m50d ( 797211 ) on Tuesday September 06, 2005 @04:26PM (#13493639) Homepage Journal
      Yes, but whatever assets they do have will be taken by the music companies (and being who they are they *will* get them). Since that's all the companies could have got anyway they won't mind.
      • Yes, but whatever assets they do have will be taken by the music companies (and being who they are they *will* get them). Since that's all the companies could have got anyway they won't mind.

        You think the company being sued has ANY assetts at all? I think they are much smarter than that...

        My guess is that any assetts, including copyrights, customer accounts, etc. in fact do not belong to them, instead they are a "management" company with the legal responsibility to "maintain" these accounts and assetts for
      • Kaaza (like RIAA) have virtual no real assets.

        So what happens....
        1) 2 Billion dollar judgment
        2) Bankruptcy
        3) RIAA has proof that piracy cost them 2 Billion Dollars in losses
        4) Profit!

  • legal costs within the formula (Score:5, Interesting)

    by moz25 ( 262020 ) on Tuesday September 06, 2005 @04:22PM (#13493600) Homepage
    Well, the way it works is that the costs of legal battles and almost certain losses are factored into the business plan. In the meantime, they're making insane amounts of money with the spyware installs and they just have to stretch that for as long as possible. It's a winning strategy that doesn't require the legality of their P2P implementation to be defendable in court.

    It's rather nasty that the costs of losing in court are not always so prohibitively high that the crime doesn't pay. Look at microsoft... sorry for that comparison.

  • How will this turn out? (Score:5, Interesting)

    by laughingcoyote ( 762272 ) <.barghesthowl. .at. .excite.com.> on Tuesday September 06, 2005 @04:22PM (#13493601) Journal

    I'm not personally familiar with Australian law, I hope someone who is will be able to give us a bit of insight. But until then, I really can't understand how the judge made this ruling. Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is. Their software simply -allows- users to transfer files via that protocol. Are the makers of FTP clients now liable if an FTP user downloads copyrighted material?

    • Re:How will this turn out? (Score:4, Insightful)

      by interiot ( 50685 ) on Tuesday September 06, 2005 @04:33PM (#13493708) Homepage
      As far as I can tell, implementors of TCP systems, file protocols (NFS, Samba), etc. When push comes to shove, they may be able to come up with a legal definition to try to separate Kazaa from these. But most likely, this sucks, because the judge didn't realize quite the landmine he was stepping into.

      I mean, surely the inventors of the BSD TCP stack have known for a long time that piracy was occuring over the network. And it's possible to do data fingerprinting, even at the TCP level. So what stops them from being legally liable in the future?

      • Yeah, but everyone on Kazaa knew exactly what was going on and Kazaa knew plainly that the vast majority of people were doing nothing more than leeching illegally redistributed music.

        The inventors of TCP/IP or the BSD stack have no ability to shut the network down. Kazza did, and Kazaa profited from not shutting the network down.

        This precedent is interesting to me regarding Freenet. A illegal/legal content ratio could mean that you're obligated not to participate in such a network whether or not you'r

        • The "ability" you seem to be talking about here is "never develop it". Kazaa, like all P2P programs now, is a decentralized network relying on direct connection between users. If Sharman shut down all operations today, the Kazaa network will continue to operate as well (poorly?) as it ever did. There is no "plug to pull", as there was with Napster.

          • Very few P2P programs are completely decentralized. VERY few.

            "When a client first tries and connects to the network if first has to register with a central server. This is problematic as if the server is removed from the network then it will stop working. This is what I am sure the RIAA is trying to do by attempting to shut down KaZaa and FastTrack. It also allows for complete control of the network should they wish to introduce subscription fees for example. In part this also a possible reason why the M

      • "When push comes to shove, they may be able to come up with a legal definition to try to separate Kazaa from these."

        Huh? This was all covered in the decision [austlii.edu.au]. Sharman tried the "we're just a carrier" defense and were laughed at.

        "But most likely, this sucks, because the judge didn't realize quite the landmine he was stepping into."

        Reading the decision shows that they went way beyond that. I think many people who've RTFA but who haven't RTFCD are under the impression that the ruling was made afte

        • Re:How will this turn out? (Score:1, Interesting)

          by Anonymous Coward
          Huh? This was all covered in the decision. Sharman tried the "we're just a carrier" defense and were laughed at.

          This is because, all arguments about the morality of sharing/P2P aside, Sharman Networks was being full of crap. They are highly dodgy, built around a legal morass of front and shell companies, and the first time they were raided, they immediately started trashing their servers as the lawyers entered. The plaintiffs had to get an Anton Pillar order - where the defendant gets no knowledge/opportuni
        • I think many people who've RTFA but who haven't RTFCD are under the impression that the ruling was made after 20 minutes; the reality is that the case stretched on for many, many months, and included the testimony of computer science professors from UC Berkeley and other institutions.

          Make that 3 years.

          One of the professors on the Kazaa side had very little integrity.

          226 The two American experts called by counsel for the Sharman respondents were Keith Wimberly Ross and Justin Douglas Tygar.

          227 Professor Ross
      • BSD TCP? I think your head is shoved up too far up inside your computer case.

        It has nearly nothing to do with technology and everything to do with Kazaa's business model.
      • I mean, surely the inventors of the BSD TCP stack have known for a long time that piracy was occuring over the network. And it's possible to do data fingerprinting, even at the TCP level. So what stops them from being legally liable in the future?

        They were not leveraging profits specifically from the illegal activities and then doing nothing to stop those activities.

        KMD is an advertisement platform. Protocols are protocols.
    • From the original link [reuters.co.uk] (opens in new window)
      "The music industry told the court that Sharman Network licensed users to access a network it knew was being used for piracy and hence it was authorising people to infringe copyright."
    • This unsettles me really. It looks like Australian courts are taking one-liners out of the Grokster vs. MGM ruling in the US and doctoring to the whims of the record labels. Grokster was shut down because they willingly traded infringing content and unoffically endorsed piracy. Kazzaa isn't the same though. While it got a large amount of its user base from digital pirates, they have had a section of their documentation set aside to explain that they don't endorse infringing copyrights with their software.

      If
      • Most lawyers and judges do the same thing. If you read case briefs, you will see lawyers argue over the same case as being helpful to them or not helpful. You will also see different case decisions citing different lines out of a case to compare or to contrast that case to the one that they are citing. This is common.
        You might want to think of it as two blind men describing an elephant from 2 different perspectives -- One describes it as a snake and another describes it as a tree.

      • "Kazzaa isn't the same though. While it got a large amount of its user base from digital pirates, they have had a section of their documentation set aside to explain that they don't endorse infringing copyrights with their software."

        Most P2P software has this. It's meaningless.

        The court records show [austlii.edu.au] that Sharman condoned, encouraged and profited from piracy. They even ran ad campaigns that made it clear that they knew what was going on, and that they wanted people to use their network for piracy.

    • I think you can do better than that. Just put all your thoughts about the music industry being evil and KaZaa providing you with access to free stuff aside for a moment.

      Then think about what makes KaZaa different from FTP.

      1. FTP is a generic file transfer protocol. KaZaa is an application that allows searching for music (and movies? I'm not really familiar with it) and subsequently downloading it. So we can say KaZaa specializes in providing access to music (and movies?), whereas FTP doesn't specialize in a
      • 1. FTP is a generic file transfer protocol. KaZaa is an application that allows searching for music (and movies? I'm not really familiar with it) and subsequently downloading it. So we can say KaZaa specializes in providing access to music (and movies?), whereas FTP doesn't specialize in any sort of file in particular.

        KaZaa is an application that is designed to index a collection of files (perhpas even ID3 tags) and publish that list of files in a searchable database. How is this different from archie and

      • 1. FTP is a generic file transfer protocol. KaZaa is an application that allows searching for music (and movies? I'm not really familiar with it) and subsequently downloading it. So we can say KaZaa specializes in providing access to music (and movies?), whereas FTP doesn't specialize in any sort of file in particular.

        While I've not used the thing myself (I doubt it'd even run on Linux), everything I've found so far indicates that it operates much like any P2P filesharing application. It returns matches

    • "I'm not personally familiar with Australian law, I hope someone who is will be able to give us a bit of insight. But until then, I really can't understand how the judge made this ruling."

      No worries -- the decision is online [austlii.edu.au]. It's some 350 paragraphs, but it's pretty well laid out and should answer all the questions you have: what they were being charged with, what evidence was collected, and why the judge ruled as he did.

      "Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is

    • Read Garth Montgomery's reports from watching the case.

      Despite Garth's unusual, semi-gonzo writing style, it seems obvious to me that the Sharman defence was a pitiful joke. Nobody knows what the software does, nobody knows how it does it, nobody is responsible for it, nobody is the boss, everybody is a peon.

      Basically they didn't have a solid set of arguments to support their behaviour. They were profiting from copyright infringement, even if they did not do the copying themselves.

    • Check out the commentary from Kim Weatherall [blogspot.com] (expert in Australian IP law and lecturer at Melbourne University).

      The KaZaA operators were held to have authorised copyright infringement. If you don't market your FTP client as "zomg download free music here!!1" and ship it with a list of anonymous music servers, you'll probably be right.

      This is his summary from the ruling:

      i) despite the fact that the Kazaa website contains warnings against the sharing of copyright files, and an end user licence agreemen

      • Keyword filtering is technically an illegal judgement as nobody has the legal right to copyright indivdual words which that judgment would be implying. So compulsary key word filtering is actually the theft of those words from the public domain. Everybody still has the right to select their own file names. As to KaZaA's liabilities, who cares, they are a commercial company and that is their problem. Stupid legal judgements in court are our problem. Pardon my ignorance but what the heck is Gold File Flood Fi
    • As of the latest American Australian free trade agreement:

      Australian Law == American Law

      Unless there is a situation where Americans may be better off, in that case American Law overrules Australian law.
    • Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is.

      No it absolutely is not. It *uses* some protocols, through an application designed to provide advertising while also making it really easy to find and download the content you like. They *KNOW* that people are using it to download copyright material in a big way and they've done nothing to prevent this because THAT is the catalyst to them making money from the advertising.

      If they effectively prevent the downloading of copyrighted

      • Comparing Kazaa to FTP is completely and utterly ridiculous.

        Alright, is it really that hard to read? I've been told 3 times now that I'm comparing a program to a protocol. In my post, I specifically stated the developers of an FTP -CLIENT-. This is (say it with me) a PROGRAM which uses PROTOCOLS, which certainly could make money for someone, and which most certainly could be used to infringe copyrights.

        Also, Kazaa -is- part protocol-other programs (Kazaa Lite, and so on) also access their network, so

        • Alright, is it really that hard to read? I've been told 3 times now that I'm comparing a program to a protocol. In my post, I specifically stated the developers of an FTP -CLIENT-. This is (say it with me) a PROGRAM which uses PROTOCOLS, which certainly could make money for someone, and which most certainly could be used to infringe copyrights.

          How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy
          • How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download copyrighted works?

            I would like to change this to:

            How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download works, which incidentally is very effective at finding copyrighted works?

          • How many FTP clients do you know of which are advertisement delivery platforms which are designed to lure people to the advertisements by providing them with an easy way to find and download copyrighted works?

            I've never searched for an ad-supported FTP client, but I imagine there's at least one out there which does indeed install adware. I would also change that to reflect the facts: an easy way to find filenames of the user's choice, many of which will be copyrighted works.

            You need to read better. I

            • I've never searched for an ad-supported FTP client, but I imagine there's at least one out there which does indeed install adware. I would also change that to reflect the facts: an easy way to find filenames of the user's choice, many of which will be copyrighted works.

              The point, is that this client software made it very easy to find media (including copyrighted media), which made it popular. This popularity provided a large audience for this client software to be used as an effective advertising platform.

  • Net worth of Sharman Networks (Score:4, Informative)

    by Snake98 ( 911863 ) on Tuesday September 06, 2005 @04:23PM (#13493606)
    "The music industry seems to think it'll be able to get billions of dollars in damages out of the company, Sharman Networks"

    http://en.wikipedia.org/wiki/Nikki_Hemming [wikipedia.org]

    The way I understand Sharman Network is setup, is that if Sharman Network looses kazza, it loses it's advertising base, therefore it's not worth anything. Then RIAA won't get money, but only shut down a skelton company that has no real product or base.
    • It's the RIAA. Think about it.
    • Besides, this is not now and has never been about getting money from Sharman. This is about eliminating an effective content distribution medium not under the direct control of the music industry.

      Not that it matters. In the long run the technology of file-sharing will advance beyond any content provider's ability to control. Encryption, distributed hash tables ... it's already happening. And the reason that it's happening so quickly is because the content people have taken such a hard line. Ultimately, t
      • So, I should lose my constitutional rights because of a shift in technology? Funny, technology makes it damn easy to keep track of people through spying on communications and the use of camera systems. Throw in RFID and you've got something there. Forget about your rights, technology has made them obsolete. Or was your argument meant to last only so far as you being able to get shit for free?
        • No, you should loose that constitutional right because the "right" to restrict what people copy was never a just right to begin with. New technology is just bringing that problem to the surface. It is a phony property right. The same thing happened to peoples "right" to own slaves when the industrial revolution forced open the labor market. [scarcasim=on] What? Don't you believe in property rights? Don't you believe in capitalisim in America? You commie. Stealing is wrong! [scarcasim=off]

        • Forget about your rights, technology has made them obsolete.

          To be fair, there is a huge difference between the two.

          Privacy rights are not an artifical government construct, designed to help companies profit, because the profit motive to companies would directly benefit the public at large.

          If the detrimental effects of copyright become greater than the benefits of copyright to the public, it would be only right for the government to eliminate copyright. Not that I'm suggesting we are anywhere near that extr

          • First of all, every law is an artificial construct. Nature has only one rule, survival of the fittest. Anything else is just established to bring balance to those who are less fit to survive.

            Second, Intellectual property rights are designed to grant copyright holders, many of which are individuals, the right to protect the expression of an idea. It is not designed to help companies make a profit.

      • "The media outfits, unfortunately, have chosen to not adapt."

        Wow. Apple just sold their 50 millionth track on the iTunes Music store. Online music sales are now 5% of the total music market, and they're growing logarithmically. And the record labels probably make more money via online sales than the traditional channels. It may have taken a few years of stumbling for them to figure it out (and with the help of smart people like Steve Jobs), but this "the media companies just don't get it" line is ge

        • Yes. Apple sold it. Not some RIAA-sponsored site, or one put up by Sony, Vivendi or any of the rest of them. And if you think that the entertainment people are happy about that, you are sadly mistaken. I'm sorry, but the history of both the motion picture and music industries is one of steadily increasing control over content distribution channels. Period. So no, I don't think they really "get" it, because they would be perfectly happy to return to the old ways of distributing content. iTunes is nothing but

          • " Yes. Apple sold it. Not some RIAA-sponsored site, or one put up by Sony, Vivendi or any of the rest of them. And if you think that the entertainment people are happy about that, you are sadly mistaken."

            Remember, the record companies do 99% of their business through resellers. That's largely how their business model works. The iTMS is just another reseller to them, like Amazon or Tower Records. The difference is that it's a wildly popular reseller, and they make more margin than they do in the tradi

  • Sharman's lawyer, Mary Still, reiterated through a spokesperson today the company's position last night that it would 'appeal those parts of the decision where we were not successful' remained unchanged." Ahh...this remained unchanged today from their announcement yesterday? Let's hope so...
  • Since no one wants to buy our products, let's just sue!
  • I looks like we may be able to sue gun companies now. -Rick
  • Nothing's free anymore. If you don't pay, whatever it is, is shut down. But what I'm concerned about, is will they continue to sue the users?
  • Given bittorrents popularity at this point, even if kazaa gets back in business, is it really going to make a difference? It's obvious that bit torrent is being chosen by the tech masses as the next-big-internet-software-distribution-mode(tm).

  • Mr. Whipple is dead (Score:3, Funny)

    by Stanistani ( 808333 ) on Tuesday September 06, 2005 @04:46PM (#13493831) Homepage Journal
    I guess there's no question who squeezed the Sharman...

    *closes shell*

  • In other news... (Score:2, Funny)

    by Anonymous Coward
    ...Al Gore, inventor of the Internet, is being sued by yhe MPAA, RIAA, and all other **AA's of the US for "inventing" the internet which can be used to steal copyrighted material, look at kiddie porn, and buy stuff from myunclestoehair.com. God is also apparently preparing for a legal battle based on his invention of sight, which can also be used to steal visual copyrighted works.

  • Good Riddance (Score:4, Insightful)

    by bleckywelcky ( 518520 ) on Tuesday September 06, 2005 @05:05PM (#13494008)
    Good Riddance to a bad piece of bloatware. I'll be happy to see Kazaa die. Although I may not be happy about the implications.
  • The music industry seems to think it'll be able to get billions of dollars in damages out of the company

    I'd like to see how this is going to happen. If they had that much money, I'm sure they would have had a better defense in court.

    The music industry seems to think lots of things, but this sounds like a Blood from a Stone sort of battle to me.

    • "I'd like to see how this is going to happen. If they had that much money, I'm sure they would have had a better defense in court."

      A company for which I worked was deep into talks with Kazaa for advertising on their service a couple of years back. The contract wasn't for a particularly long time but Kazaa wanted well into the six figures. This was around the time that Kazaa was running those "Join the revolution" full-page ads in the NYT.

      The commentary on the court case also went into some detail on

  • The music industry seems to think it'll be able to get billions of dollars in damages out of the company

    But they'll settle for $7,500 and a promise not to offend again.

  • Will Kazaa be appealing in 2006? It's been a LONG time since I found Kazaa appealing...

    PS: AllOfMP3.com [allofmp3.com] gets my vote - and it seems to be perfectly legal...

  • Want a good laugh? (Score:3, Interesting)

    by serutan ( 259622 ) <snoopdoug@3.14159geekazon.com minus pi> on Tuesday September 06, 2005 @06:19PM (#13494702) Homepage
    In another article [silicon.com] on this, a record company spokesman is quoted:
    "We're disappointed they won't accept the umpire's decision. It can't be fair to build a business on somebody else's work," he said.

    I'm not a doctor and I don't play one on TV, but I know Unbelievably Blatant Hypocrisy when I hear it.
  • They're already sueing customers left and right, and now kazaa. How can they sue the users of kazaa for damages and the makers of kazaa. Isnt this kind of fighting both sides of the argument? not to mention getting paid twice for haveing a file stolen once?

    Im happily on Gentoo and using opensource software nearly exclusivly as i dont feel these business practices are ethical. Im voting with my wallet, why dont you?
  • Kazaa is a notorious, deeply entrenched spyware author; their insipid content delivery system is a mere shadow of the service's true nature, which is to infect your computer as badly as AOL Instant Messenger or as ruthlessly as Real. It is a useless service, anybody who wants to download mp3s deletes Kazaa immediately and goes for something else.

    Should I be happy Kazaa is getting sued for "copyright infringement?" It's true, Kazaa infringes on a lot of copyrights. Their spyware infringes on my personal d

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