Closing arguments in a trial pitting the parent company of peer-to-peer giant KaZaA against the Australian music industry began March 23 with the KaZaA parent telling the court they can’t control how their program is used once downloaded, an argument under which rivals Grokster and Morpheus have prevailed so far in U.S. courts.
Attorneys for Sharman Networks told the court that while there are KaZaA users who do engage in copyright violations by way of swapping music files, the creators of the program can’t be held liable because the company has “no power to control” its use, similar to how makers of photocopiers and videocassette recorders can’t control how their buyers use those machines.
That is similar to the so-called Betamax argument which Grokster and Morpheus used successfully, in federal trial court and before the 9th U.S. Circuit Court of Appeals, in their battle against MGM and other plaintiffs, in a case the U.S. Supreme Court is scheduled to hear before the end of March.
The main issue in the KaZaA case, attorney Anthony Meagher told the Australian trial court, is whether KaZaA explicitly authorizes users to download copyrighted material. “We tell these users in our Website and we tell them in our license that they cannot use (KaZaA) for infringing copyright,” Meagher told the court, where the case is being heard by Judge Murray Wilcox without a jury.
Meagher said that accepting the license agreement terms exempts KaZaA owners from infringement liability.
Wilcox at one point asked Meagher if it wasn’t “unduly cynical” to assume most people don’t read such licensing agreements, but Meagher replied that KaZaA users were required to confirm they had read the agreements before using the network.
Music industry attorney Anthony Bannon told the court Sharman monitors KaZaA users and sells information about them to advertisers, thus making KaZaA’s claim of no control over the program “completely mind boggling.”
The verdict is expected within the next six weeks, and if Sharman loses the case, a trial to determine damages would be held in 2006, according to Australian news reports.
