Original URL: http://www.theregister.co.uk/2006/03/07/kazaa_appeal_2/
Five days closer to a Kazaa resolution ... or not?
The Kazaa appeal has been heard. It must be over
Well, five days have passed and the appeal by the record companies and Kazaa has been heard. We await a judgment. In the meantime, here are some observations from the appeal.
To these eyes, the appeal before the Full Court of the Federal Court was a very different animal to the main case.
Firstly, there were no witnesses before the court - the appeal comprised of barristers presenting their cases before the three judges of the Fed Court (and occasionally being interrupted by them!).
Secondly, there was little evidence presented - although Mr Bannon, SC for the record companies, went over a great deal of evidence from the main case including screen shots.
Thirdly, the judges were extremely involved in proceedings - challenging the barristers, pushing, prodding, demanding answers to the important questions. In particular, Mr Bannon, surprisingly, was a target for this sort of exchange. He certainly did not get an easy run with many things he had to say.
Finally, while I listened to the verbal submissions with great interest, it's important to note that written submissions will have a huge influence on the decision - so there is a lot more to the case than the verbal jousting.
As for my earlier predictions on likely hot topics in the appeal, here is how I went:
(1) The role of filtering - yes, a huge issue.
(2) The global nature of the internet - not really a major issue.
(3) Audible magic as a solution to the problem of internet-based infringement - not really mentioned.
(4) The meaning of authorisation under Australian law - another huge issue, probably the biggest of the appeal.
The wildcard topics I didn't pick were the more general topic of filtering, the role of industry codes, and the status of the digital revolution. Other than on morning one, the media were largely absent from the case. After more than two years, obviously-mainstream media weren't feigning lack of interest in the case! Despite this, various Federal Court pundits had a great deal to say on these issues, as did the record companies' media person. We heard the usual claims about the record companies dominating the case, yet after the five days, most in the court were tipping that Kazaa had gained some ground.
Let's go to transcript quotes, and check out some of they key statements from the lawyers who were involved.
Mr Bannon SC (acting for the record companies), in criticising the Kazaa parties', conduct:
"There are two things they did in relation to existing users. Firstly they supply to other users unfiltered software or perhaps, yes, unfiltered software which existing users could take the benefit of as adding to their network of infringing so that's a benefit to existing users so that's an act of authorising conduct by those existing users as well as the new users, adding the subsequent infringement point or not as the case may be.
The second thing they did is they provided updates to existing uses without providing them or tyring to persuade them to take a filtered version and that's subsequent conduct which we also rely upon and that's where the persuaded upgrades come into play." (21 February, page 83 of 83)
Mr Leeming (acting for Altnet) in discussing why key word filtering as pushed by the record companies wasn't implemented:
"...there are all sorts of difficulties confronting that sort of approach and it is easy to think of some immediately. How do you deal with spelling mistakes which are endemic and one might expect to become more endemic if any filtering was put in place. I say they are endemic. If your Honours have the second screen shot with just the blue icons coming up there seems to be some artist called Robbie Williams who has produced a series of songs which had something to do with Rock DJ.
If your Honours look at the first item that has come up, Robbie William has been misspelt twice … The one that is most common is Robbie Williams with two Bs and an S at the end of William. But there are different variations that appear. If one goes down to about the tenth one has a Robbie William again. If one goes to the thirteenth one has R.W. - Rock DJ live. Beneath that is Rock DJ Robin William. And then there is Robby with a Y Williams.
I think there are about six different permutations there. That has come about not because of any intention at all to deceive or distort, but through a combination of ignorance and error ... How do you get (rid of the track), even if your simple goal was to stop Robbie Williams' Rock DJ, assuming that that is within my learned friend's catalogues, simply by the basis of its description. And if you get rid of everything that has got the word Rock in it, and all of these do, then there is going to be massive overkill. That is the false positives problem." (21 February, page 14 of 83)
Mr Ireland SC (acting for Sharman) in discussing the 98 sound recordings which were the subject of the case:
"We do not know anything, apart from the cases where of course the solicitors' representatives got hold of these sound recordings from the internet and we know what their motivations were. I mean it could be argued that it was done with the consent of the record companies. We don't do that. But what we do know is their motivations for finding those sound recordings are most unrepresentative. They were there to find evidence and make a choice in use of the technology which would provide the evidence.
Use the Kazaa technology for the particular sound recordings which related to the subject matter of these proceedings. So they can be put aside in any sense as any kind of typical user. What you did have with the universities is some students there, I think, who had sound recordings on their computers. Of course it wasn't established and couldn't be established that those sound recordings were not there otherwise than having been ripped, I think the word is, in that computer onto CD. It is equally consistent with that situation. So there is very little evidence of the circumstances in which the sound recordings about which complaint was made came to be the subject of infringement.
So all of the large inferences that our learned friends seek to gain from this, one remembers the submissions about millions of infringements and millions of dollars and world wide and unprecedented copyright infringement, are based actually in the evidence of the case on very little." (23 February, page 21 of 40)
Dr Griffith (acting for Kevin Bermeister), a former solicitor general of Australia (who it is rumoured went within a whisker of being appointed to Australia's High Court some years ago), in considering a new digital kiosk allowing consumers to purchase digital downloads from retailer Sanity as a way of the future:
"Your Honours, I am not giving evidence from the bar table but I read in the paper that's hearsay, that you can do that at Sydney Airport now, you don't have to buy the CD, you can load your player directly authorised through the Sanity store. It said so in the paper, I don't know whether it's true, I will check on the airport as I leave but your Honours that's where things are going. That's what the Act indicates. We must have progress. Copyright should be paid for but that doesn't mean you can choose to non encrypt your music and then come along and threaten people with gaol, bankruptcy, insolvency, take a programme away for (sic) 317m people..." (23 February, page 13 of 40)
Some two years after what the record companies described as their final solution it is clear that the Australian case has become bogged down without resolution, and in what must be a concern for the record companies their behaviour has increasingly become the focus of analysis, rather than the merits of the case. In particular, Justice Branson has questioned whether the record companies took reasonable steps to prevent or avoid the infringements prior to the commencement of the case.
For the last word we return to Justice Branson who is convinced that the case will go to the High Court - irrespective of a result:
"This proceeding was obviously a matter of great importance to the parties. It seems inevitable that whatever his Honour thought and almost certainly whatever the three judges here decide, that the matter is on its way to the High Court."(23 February, page 32 of 40)
It's almost as if this case is crying out for a definitive determination, and it seems that can only be obtained from the High Court of Australia. It makes you wonder what will have been achieved by the last five days... ®
Alex Malik is a technology lawyer in the final stages of a PHD in Law at the University Of Technology in Sydney.