Kazaa has always maintained that they are unable to control what the users do with Kazaa software. Today (November 30th in Australia) the Australian Court discussed some facts suggesting otherwise. An Australian news report states that:
Lawyers for the labels, including Universal, EMI, Sony BMG and Warner and Festival Mushroom, contend Sharman was fully aware that Kazaa was used to download unlicensed music.
Counsel for the labels, Tony Bannon, used Kazaa's own website as proof of Kazaa's knowledge. The Kazaa website states:
If at any time Kazaa finds that you are using Kazaa to collect or distribute child pornography or other obscene material, (the software company) reserves the right to permanently bar you and your computers from accessing Kazaa and other Kazaa services.
Bannon's point is that if Kazaa can monitor and kick off users for sharing child pornography, why not for illegal copyright infringement? If Kazaa's warning is true, Bannon has a valid point. However, it is certainly possible that Kazaa does not in fact have the capability of monitoring users at all. Maybe they just put the warning to help avoid liability. Or maybe it was just an attempt to help curb child pornography because it is so vile and harmful. Is Kazaa caught in a lie? It will be interesting to see more facts as they develop.