Monday, March 27, 2006

Kazaa contempt judgement

Kim Weatherall has an interesting update on the contempt of court judgement against Kazaa in Australia. The music industry complained that Kazaa were in contempt of a court order to effectively cut down on illegal file sharing. The ruling agree there should be a full hearing on the question. But as Weatherall says:

"But let me tell you, this hearing could be really, really interesting. Let's assume, for the moment, that the facts outlined above, as reported in the media, are accurate. I have no idea of the full extent of facts, of course. But let's assume that this is what happened:

* Judge makes order saying - 'you must not authorise infringement'. He then says 'you will not be authorising infringement if you put in Filtering Type A or Filtering Type B. Note that both these Acts are aimed at preventing new users from infringing - but are also aimed at preventing existing users from infringing (or at least, reducing infringement by existing users).
* Respondent (Sharman) doesn't do Filtering Type A, or B. Instead it does Act C - blocking downloads. That helps to prevent new users from infringing but of course does nothing about existing users (it may eventually drive them away because they won't get upgrades to software of course, but that's a long term kind of effect).

Now clearly, in this scenario, Sharman/Kazaa are engaging in one, big game of legal chicken. They've taken a risk that what they've done, less onerous and difficult as it is, will not be contempt. But whether it is contempt is not answered by the Full Federal Court's judgment. They had to make a decision in the absence of full facts about the alleged contempt.

There seems little doubt that the respondent is entitled to do something other than the filtering envisaged in Order 5, to try to comply with Order 4. But what is not clear is this:

1. Does Sharman cease to authorise infringement of copyright by blocking downloads of the software to Australia?
2. Does the answer to question (1) depend on how effective the blocking is in preventing future infringements?
3. How would you prove contempt in such a case? Could the contempt hearing have to involve a whole lot of evidence about how effective the blocking is?
4. Can any of this really be proved beyond reasonable doubt, as required in a charge of contempt?

And note: the answers to these questions - particularly question 1 - are very much dependent on what counts as authorisation. And of course guess what - that is the very matter that is on appeal."

Worth watching closely.

No comments: