Download service Kazaa in face-off with record industry

Solicitors for Australia’s recording industry branded the popular Kazaa computer file-swapping network “an engine of copyright piracy to a degree of magnitude never before seen” as they launched a court battle today to shut down its activities.

Solicitors for Australia’s recording industry branded the popular Kazaa computer file-swapping network “an engine of copyright piracy to a degree of magnitude never before seen” as they launched a court battle today to shut down its activities.

Kazaa’s owners claim the network’s 100 million worldwide users download 3 billion files each month, said Tony Bannon, representing Australia’s six major record labels.

Network users freely exchange songs, movies and television programmes without paying royalties to copyright owners.

During the first day of the trial today, court judge Murray Wilcox was shown how the system worked by logging onto Kazaa and searching for songs by artists including Australian singer Delta Goodrem and British punk band The Sex Pistols. While they were logged on, the site showed that 2.1 million users were online swapping 1.17 billion files.

The record company lawyers will try to have Kazaa’s owners declared liable for copyright breach and loss of earnings in the civil case. If they succeed, a case next year would likely set the damages the owners have to pay.

The 10 defendants include Kazaa’s owners, Sharman Networks Ltd, Sharman License Holdings and Sharman’s Sydney-based chief executive officer, Nikki Hemming.

Sharman Networks will insist that while they urge users not to commit music piracy, they have no control over what people do with the popular “peer-to-peer” software the network provides.

But at the start of a three-week trial in Sydney, Bannon dismissed Sharman’s defence, saying Kazaa’s owners provide software that helps users filter certain files from the network – such as those that could contain viruses or pornography - but they don’t provide software to filter out files containing copyrighted material.

In fact, Bannon said, the large volume of traffic in pirated files is key to revenue generation for Kazaa’s owners – the more people are file-swapping, the more they can attract paying advertisers to their website.

He also said that Kazaa software sent lists of popular files to all users’ computers – meaning the service’s owners must be able to identify them. Other software identified the type of music files being exchanged. That combination should allow Kazaa’s backers to cut off their service to anybody using the network to exchange copyrighted material, Bannon said.

Lawyers for Kazaa’s owners were expected to give their opening statement tomorrow.

Members of the entertainment industry have already sued file-sharing services in the United States.

Two courts in California cleared Grokster Ltd and StreamCast Networks Inc of liability, but the industry has appealed to the US Supreme Court.

Sharman is named in a similar suit pending in a lower court.

Analysts say the US cases are not likely to affect the Sydney trial, but all the cases share the principle that a software developer is not directly responsible for its users’ activities – just as Xerox cannot be blamed for copying done on its machines.

Kazaa already has one major court victory under its belt, with the Dutch Supreme Court ruling in December 2003 that the network’s Netherlands division cannot be held liable for copyright infringement.

A possible difference in the Australian case is the recording industry’s invocation of a rarely used law that lets litigants gather evidence in civil copyright cases. Investigators earlier this year seized evidence in raids on Kazaa-linked companies and individuals.

Sharman’s efforts to throw out the seized evidence have been rejected and the first witness expected to take the stand tomorrow will be a forensic computer expert who examined computer drives seized in the raids.

Bannon said the defendants were all seeking to get rich from advertising revenue based on Kazaa’s volume of traffic, while painting themselves as crusaders for music fans.

“It’s a charade,” Bannon said. “The respondents’ motives are not altruistic. On the contrary, the respondents trade off the copyright infringing activities of (Kazaa’s) users.”

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