Kazaa owner pins hopes on 105-year-old defence

Sharman License Holdings may be resting its defence on a precedent set over one hundred years ago, according to statements made by its lawyers in court last Friday, as the company prepares to face alleged music copyright infringement charges relating to its file-sharing software Kazaa.

Sharman lawyer JR Ellicot referred to the 1899 case of Boosey vs Whight in addressing the courts concerns over the defence's lack of cross-claim, he stated "It will be our submission in this case that we are exactly in that position now in relation to sound recordings."

Boosey vs Whight (1899) involved copyright charges arising over the production of pianola rolls, in which the court found that the reproduction of the perforated pianola rolls did not infringe the English copyright act protecting sheets of music.

Lawyers in the 1899 case forged their defence on the argument that "to play an instrument from a sheet of music which appears to the eye is one thing; to play an instrument with a perforated sheet which itself forms part of the mechanism which produces the music is quite another thing."

Sharman lawyers indicated that they are planning to present a similar defence against the accusation made by Universal Music Australia and its affiliates.

"However you describe it on a computer hard drive, it is not a copy of a sound recording, and it also has the implication that even if you take from a CD and put it on a computer what is on the computer it not a copy," Ellicot said in court last Friday.

Ellicot maintained that an "infringing copy has to be a sound recording", and said his clients are further removed from liability by the fact that they are not responsible for uploading the songs.

"My client's not the uploader. We don't have anything to do with it and that uploader on a World Wide Web could be in Bolivia, could be in South Africa," said Ellicot. He added that the uploader of the music files that was shared on the Kazaa network must "be in Australia for it to be an infringement".

Following Friday's proceedings, the Universal Music party is under court instructions to issue the Sharman parties with the specific particulars of their allegations of infringement of the Copyright Act, with notification due this Friday.

The Sharman parties then have 14 days to present the applicants with a cross-claim before both parties can submit an application to access the evidence seized in raids on Sharman premises last February.

The evidence is currently being held by an independent solicitor until terms of access can be set.

Parties are due back in court on the 1st of July; the presiding Justice Wilcox said he hopes for a hearing date sometime in this year.

ZDNet Australia's Abby Dinham reported from Sydney. For more coverage from ZDNet Australia, click here.