The Kazaa suit in Australia has been the subject of a few recent posts, so why not one more? A recent article on CNET news gives some insight into the music industry’s case against Sharman Networks (as if it really was a big surprise what they were going to say). While Sharman holds the position that it cannot control what the users do with its software, the music industry basically calls the software (or at least the latest version) “the robbers reward” that does nothing to prevent copyright infringement. In their own words:
Kazaa version 3 provides delightfully contemporaneous evidence that the respondents give their blessing to the copyright-infringing ways of their users. Indeed, they reward them with a new and better product to continue their robbing ways."
Strange how you don’t see this kind of reaction to new and advanced photocopiers that can do anything and everything (including make coffee). I haven’t seen anybody call for Xerox or Cannon to engage in mass efforts to prevent copyright infringement on their machines, even though it is widely accepted that a good amount of copyright infringement (even taking into consideration fair use) takes place on those machines on a daily basis. Heck, if these groups were really serious about protecting copyrights as a whole (and not just their profits), they would station a “copyright cop” next to public photocopiers to make sure copyrights aren’t being infringed. Sure, the MPAA and RIAA have more important technologies to worry about (DVD burners, iPods, Tivo, etc), but if their desire to protect copyrights from infringement was so genuine, you’d think they would try a broader approach rather than just target the likes of Sharman Networks. This way, when they go after Sharman Networks, their argument of protecting copyrights from infringement might not seem so disingenuous.
What gets me is the industry’s argument that Sharman Networks has the duty to design its software to make it harder for copyright infringement to occur. Even if, as the music industry says (referring to Sharman), “they are perfectly capable of taking steps to inhibit infringing activity”, this does not confer an obligation on Sharman to put into place any measures to stop infringement. Although this is an argument that Posner mentioned in Aimster – the “could have designed it better” standard – that is not the state of the law today. Now, if cert is granted in the Grokster case here in the U.S., maybe there will be some kind of affirmative requirement to take “reasonable efforts” to eliminate the possibility of software being used to infringe copyrights. However, that is unlikely because it really isn’t an issue in the case.
At any rate, whether or not designers should be forced to take into account the facilitation of copyright infringement does not appear to be the kind of issue that courts should be deciding. At the Supreme Court mentioned in Sony, Congress is better suited to deal with these types of matters. From the looks of it, it appears that the music industry’s next strategy (unable to pass legislation in Congress, not making too much headway in the courts, and unsuccessful in scaring people away with lawsuits) is to persuade any court it can find in the world that p2p file-sharing that allows users to engage in copyright infringement is bad and should be stopped. Of course, now that several major labels have tried to get in on the p2p action, as noted by Yip Yu, do they really think there exists a court that is going to believe them? If the music industry saved its litigation costs and used them to knock a few bucks of their CD prices, they might not be in this situation today. But who am I kidding? That is waaaay too easy of a solution to this problem.
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