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True stories from under the bar table - the Kazaa case concludes

Alex Malik was there

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Eye Witness Yawn … 8.30 in the morning … double yawn … didn’t really want to be here. Sydney was blowing a gust and the rain was pounding down. It was March but you would’ve thought it was July (that’s winter for those who are planning a summer holiday in Oz).

Check out this exchange from the bar table:

Lawyer 1: “what are we going to do after this week.”
Lawyer 2 “oh it’s alright – we can still send each other abusive letters.” ["and charge our clients for it"]
Lawyer 1: “oh I stopped doing that last year.” ["yeah right"]
Lawyer 2: “Got to admire the judge’s ability to plough through the evidence and move forwards.”

Anyway, the judge turned up half an hour late - at just before 9 am. Something about the traffic (Sydney residents will understand). The final day of the case starts and as the clock strikes 9am, the Federal Court tests its fire alarms – all of its alarms. The test is met with good humour – well mostly good humour!

It was that sort of a day – after 13 months of hearings and an estimated AU$8m of expenditure by each side it was a welcome end to the process. And what have we learnt from this process. Here’s some of the ideas put forward:

From the recording industry

  • Internet piracy is a substantial problem and the recording industry has the right to protect their copyright.
  • The recording industry will exercise that right to protect their copyright – no matter what the cost, and no matter where they are (there was a senior IFPI executive in the Federal Court and IFPI, who are the parents of ARIA and RIAA, have taken a very active role in worldwide anti-piracy actions).
  • In the recording industry’s view, copyright is important, but they also view downloading as theft, or simple larceny, and in their view the technology involved is a less significant factor – the existence of the theft is more important than the means of the theft.
  • The recording industry will focus on businesses, business plans and will do everything in their power to follow the money if they think the money has an illicit source.

From the judiciary

  • They can and will handle complex cases involving the internet, new technology and new business models.
  • Where possible the judiciary will try to keep the parties to a strict timetable – although in practice it doesn’t always work!

From the respondents

  • Kazaa involves more than individuals downloading “hit” music from major labels – it is about legitimate non infringing usage. Kazaa is about free international phone calls, the sharing of information in a world wide community, and other non music related activities.
  • Kazaa is about independent labels selling music. For example Altnet has deals in place with V2, Artemis and other labels, so consumers can buy music from Moby, Stereophonics and other recording artists. Other indies chose to give away their music – they know much more money can be made from a loyal live following! Jerry we’re thinking of you, we miss you, wherever you are!
  • Kazaa is about personal choice. In the same way as someone can photocopy something legally or photocopy an entire copyright protected book, Kazaa users can chose what they wish to share – but that is their choice, and Sharman can’t control that decision or filter the results if that decision is a “wrong” decision.
  • Kazaa is about developing and promoting new technology and providing opportunities for artists and the recording industry. The technology is about making the pie larger, not about taking a larger slice of the pie. [reminds me: "pizza time!"]

From the media

  • Mainstream media can and will get it right, but they will also get it wrong – no disrespect to them – at least there is the power of the blog!

Finally – we have seen a big increase in our internet bibliography – spoofing, Fast Track, supernode, blue/gold icons, GUI, KMD, TopSearch, filters, IP address, port number, and Contenthash (who are apparently a hot new indie band from Fort Wayne) … you have to love it when lawyers talk IT!

I think I’ll go to onto the internet now – maybe I can download that Federal Court fire alarm! A permanent reminder of the good times! ®

Alex Malik has a B.Com (Finance) and LLB from the University of New South Wales and an LLM from Sydney University. He is in the final stages of a PhD in Law with a specialisation in intellectual property rights enforcement, at the University of Technology.

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