The Distribution of Digital Property

Southern Cross University held a Community Forum on the Distribution of Digital Property today (11/12/05) in Byron Bay. Speakers were Tony Morris QC and Quentin Cregan, senior and junior Counsel for the defendant in the Universal Music Australia Pty Ltd v Cooper [2005] FCA 972; John Hennessey, junior Counsel for the applicants in the case of Universal Music Australia Pty Ltd v Sharman License Holdings [2005] FCA 1242; and Peter Coroneos, Chief Executive of the (Australian) Internet Industry Association. Here are some of the highlights from what they had to say:

John Hennessey outlined the basis of the Kazaa litigation (authorisation) and made reference to the "minuscule" quantity of legitimate works relied on by Sharman to justify their business operations. He stated that the Kazaa has repeatedly "demanded" licenses from the recording industry which they were not given but in correspondence concerning the potential to license works, Kazaa indicated that they were in a position to filter out offending content. He commented that the failure to implement key word filters by the 5th December 2005 has resulted in further legal action with the parties going back to court this Thursday for a contempt of court hearing.

Tony Morris and Quentin Cregan offered an alternative perspective on the issue of authorisation, suggesting that while they do not condone the misuse of Intellectual Property, they considered the Cooper case to have important legal ramifications both within Australia and overseas. Tony gave a background to the litigation indicating that Cooper was very much a low level and amateurish operator. Cooper was by and large honest with his website, MP3s4Free, registered under his own name and address and hosted within Australia despite the alternative option of perhaps operating from countries such as China. The way the website was set up allowed visitors to post links on the site, the problem being that some of the links led to pirated recordings. The critical issue in the case was whether merely providing links was enough to establish authorisation rather than merely facilitating a connection. The court held that Cooper had the ability to review and remove offending links and as such he was found guilty of authorisation. At no time was the offending material on his website. The disclaimers on his website were also held to be ineffective. Cooper's ISP was also held accountable as he had an arrangement with them by which he posted an advertising banner in exchange for free hosting. The court held the ISP to have a financial benefit from the operation of the website.

Tony suggested there to be potential for the matter to be appealed and suggested that it may be joined with the Kazaa matter for High Court determination of the scope of 'authorisation'. He also suggested that the Record Industry was playing catch up and although they have won the Cooper case and will most likely win the Kazaa case it will change nothing in terms of sharing illegal content.

Peter Coroneos gave a bigger perspective on the battle between old and new methods of content distribution. He questioned the ongoing relevance of copyright law and particularly noted how out of step it was with what was happening on a day-to-day basis. He noted the progress of file sharing technology, the fact that the Internet is a truly revolutionary architecture and ultimately suggested that what we are witnessing in the content industry today is MARKET FAILURE. He suggested that content itself is not under threat by peer-to-peer networks but it is the intermediaries - the recording companies - that are under threat.

A general question and answer time was then held. I asked John Hennessey to elaborate on the potential for Audible Magic filtering of the Kazaa network and he merely indicated that only key word filtering and gold file flood filtering were considered immediate options and that the failure to implement these within the time specified by the court meant that Kazaa would be shut down. When questioned as to the motivation behind the Kazaa case John Hennessey indicated that the recording industry needed to do something while it implemented a legal download model. Tony Morris commented that the Kazaa litigation was based on sheer stupidity. Most speakers seemed to think there was no immediate threat of individual prosecutions within Australia, however Peter Coroneos indicated that the American ISP Verizon, was receiving in the vicinity of 300,000 requests for personal information a year and that in Europe the Cybercrime Treaty means that end user data may now be available to prosecute copyright infringement.

The speakers and some of the participants then met for drinks and for over an hour discussed cyberlaw further. At no stage did I mention that I was a blogger (isn't everyone?) so ethically I can't divulge the exact responses to my questions.

I asked about whether Wilcox's comments in the Kazaa case, where he indicated that individual prosecutions were not a viable option, would prevent ARIA from taking that step in Australia. Generally it was thought to be unlikely that that would prevent individual prosecutions from occurring.

We talked about the privacy implications of companies like Media Sentry and the monitoring of networks by private companies, and about individual prosecutions in the USA. I said to John Hennessey: "come on - you would have to agree that that is extortion!"

I also asked about the hope for collective licensing but generally it was suggested that it was unlikely to happen. I stated that the warnings on the Kazaa website had stopped me from using that software and had shifted me to another network.

At some stage I showed John Hennessy a book I was carrying in my bag - The Future of Music - I told him it was a good book. When all the others were talking among themselves, I said quietly to him: "I know you can't see this - but it would be a real shame for Kazaa to be shut down."

We all talked about other countries that it would be more legally viable to start a peer-to-peer network in. I suggested that the Kazaa litigation merely meant that the digital music revolution would not be owned by an Australian company.

As we were parting company I said - "thanks for your time - I hope you lose" - John Hennessey said: "we wont". He really thinks he is doing the right thing...