As Scott Ford posted earlier, music companies suing Kazaa contend that Kazaa was able to track users that were sharing copyrightinfringed material and were able to stop them from sharing. The music industries contention is based on a label on Kazaa’s website which states that users who share child pornography or other obscene material will be banned from Kazaa. This appears to be somewhat of a res ipsa loquitur argument. If Kazaa says they can ban people then they must have a way to track them and stop them. Scott offered some alternative explanations for this label such as an idle threat to deter sharing obscene material or for legal protection. However, now the music industry is brining an even stronger argument to the table. The music industry has introduced MediaSentry as a witness in there case to prove that Kazaa could track individuals sharing copyrighted materials and communicate with the users as well.
Tom Mizzone, vice president of MediaSentry, contends the IP addresses allocated for Internet service providers in Australia
The introduction of MediaSentry as a witness brings up several questions, however.
1) Can Media Sentry really identify copyrighted material on Kazaa? MediaSentry contends that it can identify which users are sharing copyrighted material through Kazaa, however, it will be interesting to see how efficient their system is. The company says that it uses a process of “scanning” to identify which users have copyrighted material, but it is unclear how this process actually works. Is the process a mere visual scan of the file’s title? Or does the scan look at the ID3 tag on the file? Or does it use another system of tracking such as other tags or looking at sections of code? Obviously the more accurate the system, the more damaging for Kazaa, but it is unclear how the method works.
2) Should Kazaa have to develop or use a method of tracking? Even if MediaSentry can identify which users are sharing copyrighted material, does this mean that Kazaa should have or even could have developed or bought this technology? MediaSentry says their method is something that any other user on Kazaa could do. They contend that any user can look at the shared files of another user and from there identify if copyrighted materials were being shared. This tends to indicate that the “scanning” process is a mere visual identification of the files label. The average user could probably look at a file named “Metallica – Unforgiven” and recognize that it is a Metallica song named Unforgiven and know that it is copyrighted. However, this technique is not full proof especially given the growing number of “spoof” files being distributed by companies. A mere visual inspection would not indicate whether the file was real or a spoof and this could lead to erroneous identification. Further, users could easily circumvent this visual scanning technique by renaming the files to something not as obvious or changing certain characters in the file such as what happened when Napster began cracking down on certain files being shared.
If the “scanning” technique is more complex than a mere visual search of looking at the file name, should Kazaa have to develop or purchase such a means of identification? There are tons of products put out on the market that the manufacturer has no idea how the product will be used once it is sold. There are the extreme examples of guns and other weapons, but even closer to our topic we have video cassettes, audio cassettes, cdr, dvdr, hard drives, flash memory and a plethora of other digital media. These products could be distinguished from P2P since the other products are not as easily tracked once distributed, but is it fair to put a greater onus on the P2P companies just because tracking may be possible? The answer to this question depends on which side of the fence you are on. Kazaa would contend that this process is overly burdensome and not very effective given the methods available. Whereas, the music industry will contend that this is an easy method to employ and given the gravity of the harm, Kazaa should ensure its product is used correctly. There is no simple answer to this question and it appears either side has viable arguments to support their cause.
3) Can they communicate with them? MediaSentry also contends that Kazaa can communicate with its users through the instant messaging program built into Kazaa. However, having an instant messaging program does not necessarily mean Kazaa can actually communicate with users. Many users don’t even use the messaging system or ignore many messages if they do. The communication aspect seems a small point, however, since identifying copyright infringers is the biggest issue.
4) Can Kazaa stop users even if they can track or talk to them? The biggest concern with the MediaSentry contention is that even if Kazaa can identify users and communicate with them, can they even stop them if they wanted to? This goes to the horse is out of the barn argument, that once the product is released, there is nothing Kazaa can do to stop it. MediaSentry only claims it can identify users and communicate with them, but it does not say that it can stop users once they are identified. The only evidence the music companies have used to show Kazaa can stop users from sharing is the warning label on Kazaa’s website that states they can ban users for sharing child porn or other obscene material. This is a rather weak argument unless they can actually prove the ability to stop users.
It would seem that since the IP address is used to track the individuals then the user should be able to be stopped by some means. If nothing else the IP provider could disable the user from connecting to the network. But should the burden be on Kazaa to contact the IP provider for every user they think is breaking copyright infringement laws? This seems to be very burdensome and possibly and impracticable method for Kazaa to employ. However, if MediaSentry or the music industry can prove that Kazaa can prevent sharing through a less obtrusive and burdensome means, then there would be more pressure on Kazaa to show why they didn’t use this means.
5) What should Kazaa be liable for? Even if Kazaa could prevent users from sharing music or other copyrighted files, what should they be liable for? Should they be liable for any way the product was used, reasonably foreseeable uses, or merely the uses they intended the program to be used for? This question will likely be based on the governing law of the land and will liking vary depending on the territory. This brings up another interesting question then of what law should be enforced.
6) What law to use? Kazaa is being sued in Australiasince that is where the company is located, however, it appears the majority of users are in the United States
This case could be decisive in determining the future of copyright and the future of P2P in particular. The case is in Australia