Kazaa Raided . . . .

The Australian record companies have started legal procedings against Kazaa, aimed at shutting it down. This included a court-authorized raid on the Kazaa offices to seize evidence.

What is important to understand in this case is that because Australian copyright law is a bit different from the norm, you could get a different result in the case than you would in, say, the United States. So it’s pretty silly for anyone at Sharman Networks to argue that U.S. or Dutch court decisions apply in Australia.

In the U.S., under current copyright law, the courts have held that so long as the creator of software such as Kazaa does not take a role in the actual copyright infringement, it is not liable to any copyright infringement made by the users of the software.

Australian law is a bit different. It has penalties for “authorizing” copyright infringement, but they define “authorizing” very loosely, more like “allowing to happen.” If you knew or had reason to know that illegal actions were being taken place, and you did not take reasonable steps to stop it, you would be liable under Australian law.

Disclosures tacked onto the software will likely carry little to no weight.

Given that, the Australian authorities have a reasonable shot at nailing Kazaa, and this could include criminal as well as civil penalties.

Kazaa does have possible defenses. It will probably argue that it is a “common carrier” like an ISP, for which there is an exception to the “authorizing copyright infringement” under Australian law.

How Does That Affect Me?

I’m not going to pretend to understand Australian law well enough to predict the outcome of the case, but even assuming the Australian music people win, the differences in Australian law that would make successful prosecution possible would also limit its impact outside of Australia.

For most of the rest of the world, outside of maybe no more Kazaa upgrades, the impact would be zero.

We’d likely see the spectacle of third-parties “taking over” Kazaa, and seeing Sharman Networks suing those parties for copyright infringement. 🙂

In Australia itself, though, a successful prosecution of Kazaa would make it more likely that successful prosecution of P2P users could occur in Australia, and again, differences in law would make criminal prosecutions possibly doable.


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