If Kazaa can block traders of child porn, it can block copyright infringers too, the Australian Federal Court has been told.

Speaking for the plaintiffs - dozens of recording companies and related organisations - Tony Bannon, QC, yesterday dismissed Kazaa owner Sharman Networks' claim that the company had no control over how its software was used and thus, by implication, could not be held responsible for those acts.

Look at the company's position on child pornography, he said: "If at any time Kazaa finds that you are using Kazaa to collect or distribute child pornography or other obscene material, [Sharman] reserves the right to permanently bar you and your computers from accessing Kazaa and other Kazaa services."

So, he added, if Sharman can block these users, it can also prevent anyone who shares material without the permission copyright holder, he said. In other words, it has the means to monitor and control what kinds of material are being traded on its network.

Bannon's implication is clear: the fact that Sharman has not booted off the copyright infringers, as it pledges to be able to do with porn peddlers, means that it must therefore tolerate their actions. Sharman is tacitly condoning such behaviour, he suggested.

That will be a hard point to argue. Sharman's defence, as outlined by Tony Meagher, SC, centres on the company's lack of control over the material that the network and software is used to share. Today, he re-iterated the claim that, like tape-to-tape cassette decks and video recorders, Kazaa has legitimate uses, and only these are implicitly authorised by Sharman. Since the vasy majority of Kazaa users live in the US, the software should be judged from the perspective of US law. And the US court, he said, has ruled P2P software developers are not responsible for the actions of their users.

As for the allegation that Sharman profits from piracy by charging for Kazaa Plus, Meagher said: "If you pay, you don't get the privilege of being bombarded with advertisements."

The case continues. ®

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