Yesterday was the first day of the Kazaa appeal, the long-awaited and eagerly anticipated appeal from Wilcox J’s judgment in Universal Music Australia Pty Ltd v Sharman License Holdings Pty Ltd (2005) 65 IPR 409; [2005] FCA 1242.
It has all the hallmarks of being a cracker. There’s a star-studded bench: Branson, Lindgren, and Finkelstein JJ. There’s the contemporary and interesting subject-matter. And, after Wilcox J’s flick-pass last month (Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCA 29), some contempt issues thrown into the mix.
I know appellate advocacy, while exciting for some, is dry for others. So, while I wasn’t expecting a colourful trial journal, I thought there might be some informed commentary to be had.
But no.
Instead, we get:
Kazaa defence cites 1920s case
A 1920s music-hall concert and a rock band in a Sydney pub featured prominently in the first day of a week-long battle between file-sharing network Kazaa and the music industry, with both sides fighting last September’s Federal Court ruling against the peer-to-peer company.
…
Counsel for Sharman, John Ireland SC, cited several precedents—including the 1928 Adelaide Corp music recital case, and the 1989 Old Windsor Tavern (a Sydney live-music venue) case—in arguing that his client did not “authorise” piracy.
…
Yes, it appears that the appellants’ counsel—in an event both shocking and newsworthy—cited Adelaide Corporation v Australasian Performing Right Association Limited (1928) 40 CLR 481; [1928] HCA 10 (which featured, incidentally, Robert Menzies facing off against Owen Dixon KC, as he then was), one of the foundations of the law of authorisation of copyright infringement in Australia and cited with approval in the seminal case of University of New South Wales v Moorhouse (1975) 133 CLR 1; [1975] HCA 26 and, for something a little more contemporary, Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 61 IPR 575 at [16] per Bennett J; [2004] FCA 1123.
And it’s not like it has been heretofore overlooked in the Kazaa litigation: Wilcox J considers it at [367] of the primary judgment.
I know the headline writer was aiming for some whimsy: I presume he or she thought the juxtaposition of the modern peer-to-peer file-sharing software supplied by Kazaa and the venerable antiquity of a judgment decided when Stanley Melbourne Bruce was Prime Minister would be both humorous and insightful.
But really. Please. I’m aware “Kazaa counsel cites relevant law” doesn’t have the same je ne sais quoi, but can’t you at least try?
