There is an interesting article in Australian IT about the Kazaa copyright lawsuit in Australia. It seems that they are going to try and run this based on the prohbition on the Copyright Act offence "communicating" copyright material. On my present read of that section the "communicating" head doesn't seem to go significantly beyond the principles in the US P2P cases.
One would think that the judge would find that while the Kazaa users may be "communicating" in section 85(1)(c) terms (see here, also definition of "communicate" - make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter. ) Kazaa is merely providing the service upon which this occurs (among various other uses).
The appropriate argument to make would seem to be (and I gather this is similar to that made in the US cases) that Kazaa is "authorising" the communication, except they can't really argue that because of section 38(b) which would seem to apply to Kazaa and provides:
A person (including a carrier or carriage service provider) who provides
facilities for making, or facilitating the making of, a communication is not
taken to have authorised any infringement of copyright in a work merely
because another person uses the facilities so provided to do something the
right to do which is included in the copyright.
Given that provision even the first Napster decision would have been unlikely to have the same result in Australia as it did in the US.
I await judgement in this case with great interest, as if the judge finds against Kazaa it would seem to be a significant change in direction for Australian copyright law.
An extract from the Australian:
THE music industry plans to pursue file-swapping network KaZaA with unique Australian copyright legislation that places responsibility on organisations that "communicate" pirated material on the internet.
The major recording companies have signalled their intention to pursue KaZaA owner Sharman Networks with a section of the Copyright Act that prohibits communicating - defined as to "make available online or electronically transmit" - copyright material.
Read on: Australian IT - Local copyright law may trap KaZaA (Simon Hayes, FEBRUARY 24, 2004)
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