-------- Original Message -------- Subject: grokster & kazaa Date: Wed, 07 Sep 2005 16:10:01 +1000 From: Matthew Rimmer <RimmerM@private> To: <declan@private> Dear Declan McCullagh, Hi there. I am a copyright academic from the Australian National University. Just a couple of things: [personal note snipped] * Of possible interest to Politech, the Kazaa decision has been handed down in the Australian Federal Court: http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1242.html Some good academic responses by Dr Kathy Bowrey - http://www.chickenfish.cc/lic/index.php?itemid=10 Kim Weatherall - http://weatherall.blogspot.com/ Lots of media commentary: Needham, Kirsty. "Music Industry Banks On Opening of Online Store", The Sydney Morning Herald, 7 September 2005, http://www.smh.com.au/news/technology/music-industry-banks-on-opening-of-online-store/2005/09/06/1125772527482.htmlHayes, Simon. "Day The Music Died", The Australian, 6 September 2005, p 29, http://australianit.news.com.au/articles/0,7204,16502386%5E15306%5E%5Enbv%5E,00.html For what its worth, in my opinion, the Kazaa judgment suffers from a few weaknesses and flaws in terms of its reasoning. The first problem with the judgment is that it is highly fact specific. Although he makes heroic efforts, Wilcox J seems overwhelmed by the mass of detail in the trial. The second problem with the decision is that it fails to articulate clear principles as to what constitutes authorisation. Wilcox J suggests that there are a number of factual indicia that might support a finding of authorisation - knowledge of infringement; a failure to install proper filters; and a misguided public relations campaign 'Join the Revolution'. However, he provides little guidance for technology developers and entrepreneurs in other factual scenarios - for instance, the developers of the iPod, TiVo, Foxtel iQ, and Slingbox. The third problem with the decision is its failure to address wider policy concerns. Wilcox J neglects to discuss the origins of P2P networks, and consider comparative law on the subject properly. He refuses to address wider policy concerns about competition and consumer rights. Wilcox J was perhaps overly conscious of the inevitability of an appeal. One can only hope that the appeal court seeks to remedy the crude nature of Australian law on authorisation of copyright law. Regards, Matthew Rimmer _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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