Kazaa owner takes heart from US copyright ruling

Sharman Networks is looking to a US ruling to lend weight to its copyright fight in the Australian courts
Written by Abby Dinham, Contributor

Sharman Networks, parent company of the peer-to-peer (P2P) file sharing software Kazaa, is rejoicing at the US court ruling that found two similar P2P programs, Grokster and Morpheus, do not violate US copyright law. However, the company concedes that the ruling is unlikely to have any impact on the music copyright infringement case currently going through the courts in Australia.

Sharman said that as consequence of the decision made by the Ninth US Circuit Court of Appeals it will file a motion for a similar ruling to be held over its US copyright infringement case, with the group's lead counsel for the US trial, Rod Dorman, demonstrating a new air of confidence.

"Sharman Networks will be filing a motion for summary judgement, nearly identical to the successful motions filed by Grokster and Morpheus, and we are confident that Judge Wilson will find that our product, Kazaa, is a lawful product as well," he said.

Dorman describes the decision as a "victory for the technology industry and fans, artists and owners of entertainment content".

"Entertainment industry executives in the US must now embrace peer-to-peer technology and work with software developers and other partners to commercialise it. It is time for them to take their business back from their lawyers and steer it into the future of digital distribution," said Dorman.

However, Dorman adds that the decision will not set a precedent for the legal proceedings currently underway in Australia.

Sharman Networks is currently facing music copyright infringement charges in Australia related to its Kazaa software. The action was brought by Universal Music Australia and numerous supplementary Australian record companies. Following six months of hearings the case is still in the early stages of evidential discovery.

"The doctrines of vicarious and contributory copyright infringement have been established in the US by the courts," said Dorman. "Although analogous doctrines are recognised by Australian courts, the principles to be applied are not identical."

Yet Dorman adds he expects the Australian court "will consider the reasoning of the Ninth Circuit during its deliberations."

"Regardless, the reasoning of the Ninth Circuit decision is powerful, sound and persuasive. In addition, and more importantly, we are a global community and there should be consistent doctrines governing the application of copyright law to the Internet worldwide," he said.

The public face of Sharman Networks, chief executive Nikki Hemming, describes the decision as a "fantastic result for the peer-to-peer community", which she said "reinforces similar decisions in other courts around the world that P2P is legal".

"Our message to the entertainment industry is to stop litigating and start partnering with us. Legislation is not the answer, commercialisation of P2P is," she said.

Sharman Networks was back in an Australian court last Wednesday to continue negotiations over evidence access and procedural matters. No subsequent firm court date has been set; however, presiding Justice Murray Wilcox has set a tentative trial date of 29 November.

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

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