Kazza Court Result

[GhostShip]

I thought many of you might be interested in this report from the australian court , setting out the decisions and reasonings behind it for a partial defeat in the courts today.

http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1242.html

The formal orders that I make are as follows:

1. Leave be granted to Australian Consumers’ Association Pty Ltd, Electronic Frontiers Australia Inc and New South Wales Council for Civil Liberties Inc to intervene in this proceeding to the extent necessary for them to put submissions that do not depend on material not already in evidence.

2. It be declared that each of the six respondents named below (‘the infringing respondents’) have infringed the copyright in each of the sound recordings whose title appears in column 2 of the attached Schedule, being a copyright of the applicant (‘the relevant applicant’) whose name is set out opposite the title of that sound recording in column 4 of that Schedule by:
(i) authorising the doing in Australia by Kazaa users of the following acts (‘the infringing acts’) in relation to the said sound recording:
(a) making a copy of the sound recording;
(b) communicating the recording to the public;
in each case, without the licence of the relevant applicant; and
(ii) entering into a common design, with each of the other infringing respondents, to carry out, procure or direct the said authorisation;
The infringing respondents are Sharman Networks Ltd, LEF Interactive Pty Ltd, Nicola Anne Hemming, Altnet Inc, Brilliant Digital Entertainment Inc and Kevin Glen Bermeister.

3. It be declared that each of the infringing respondents threatens to infringe the copyright of the applicants in other sound recordings by:
(i) authorising the doing in Australia by Kazaa users of the infringing acts; in each case, without the licence of the applicant who is the relevant copyright owner; and
(ii) entering into a common design with each of the other infringing respondents, to carry out, procure or direct the said authorisation.

4. The infringing respondents be restrained, by themselves, their servants or agents, from authorising Kazaa users to do in Australia any of the infringing acts, in relation to any sound recording of which any of the applicants is the copyright owner, without the licence of the relevant copyright owner.

5. Continuation of the Kazaa Internet file-sharing system (including the provision of software programs to new users) shall not be regarded as a contravention of order 4 if that system is first modified pursuant to a protocol, to be agreed between the infringing respondents and the applicants or to be approved by the Court, that ensures either of the following situations:
(i): that:
(a) the software program received by all new users of the Kazaa file-sharing system contains non-optional key-word filter technology that excludes from the displayed blue file search results all works identified (by titles, composers’ or performers’ names or otherwise) in such lists of their copyright works as may be provided, and periodically updated, by any of the applicants; and
(b) all future versions of the Kazaa file-sharing system contain the said non-optional key-word filter technology; and
(c) maximum pressure is placed on existing users, by the use of dialogue boxes on the Kazaa website, to upgrade their existing Kazaa software program to a new version of the program containing the said non-optional key-word filter technology; or
(ii) that the TopSearch component of the Kazaa system will provide, in answer to a request for a work identified in any such list, search results that are limited to licensed works and warnings against copyright infringement and that will exclude provision of a copy of any such identified work.

6. The operation of order 4 be stayed for a period of two months from today’s date, or for such extended period as a judge may, on application, allow.
7. The applicants’ claims for pecuniary relief against the infringing respondents be reserved for determination at a hearing to be fixed on application for that purpose.

8. There be liberty to all parties to apply, on seven days notice:
(a) within a period of one month from today’s date, in respect of the form of order 4 or 5;
(b) generally, in respect of any Court approval required for the purposes of order 5, or any order required for purposes related to order 6 or order 7.

9. The applicants’ claims under the Trade Practices Act 1974 (Cth), the Fair Trading Act 1987 (NSW) and in respect of the tort of conspiracy all be dismissed.
10. The infringing respondents pay 90% of the costs incurred by the applicants to date in relation to this proceeding.

11. The proceeding be wholly dismissed as against the following four respondents (‘the dismissed respondents’): Sharman License Holdings Ltd, Philip Morle, Brilliant Digital Entertainment Pty Ltd and Anthony Rose.
12. The applicants pay the costs incurred in relation to this proceeding by each of the dismissed respondents, provided that, in the case of those dismissed respondents who were represented at the trial jointly with infringing respondents, such costs shall be limited to costs other than those that would have been incurred, in any event, in connection with representation of the relevant infringing respondents.

I have marked the areas that the court disagreed with the industry in bold.
What the judge made clear was that the industry had in both cases overstated their claims, a polite way of saying they where grossly exaggerating the actions and losses due to Kazzas operations, lying in laymans terms.

No doubt they will be parading this as some sort of victory but the fact is they have lost claim against 4 defendants and are not even getting all their court costs paid by Sharman, hardly a big win.