Though it’s very flattering to be considered in pari passu with Australian IP blogging doyenne Kim Weatherall, I think that’s misplaced. I recommend her initial comments on the decision: Universal Music Australia Pty Ltd v Sharman License Holdings Pty Ltd [2005] FCA 1242. Also, Matthew Rimmer has a succinct and cogent comment on Kim’s blog, which I’ll liberate from the comment popup and extract here because I largely agree with it (links are mine):
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—e.g., 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 and undiscriminating nature of Australian law on authorisation of copyright law.
A couple of additional points.
First, regarding the judgment, I thought it read well. (Then again, it was late at night and my judgment—no pun intended—may have been impaired.) I get the impression that this was largely because of the way the parties ran the matter, adducing copious evidence about points that, in the result, were of peripheral relevance. Wilcox J was obviously obliged to deal with the parties’ (lengthy) submissions. As he indicates at [27], he has omitted a non-trivial amount from the judgment. Perhaps he may have omitted more if he hadn’t considered it inevitable that the matter would be appealed (e.g., at [526]).
Secondly, it seems to me that Wilcox J harboured some sympathy for the respondents, but was (quite properly) obliged to apply Australian copyright law, see e.g., at [418] and [419] and this passage from the summary:
I understand the argument in favour of more widespread licensing of copyright works. No doubt that course would have commercial implications for sound recording distributors. Whether or not they should take it is a matter to be determined by them. Unless and until they do decide to take that course, they are entitled to invoke such protective rights as the law affords them.
Thirdly, there’s this little gem, which I’ve cheekily taken slightly out of context (at [351]):
Perhaps the occasional legal proceeding might be useful pour encourager les autres, if the necessary information could be obtained. However, it is not realistic to believe legal action against individual infringers will stamp out, or even significantly reduce, file-sharing infringements of copyright.
Fourthly, initially I shared Kim’s surprise about the form of relief suggested by Wilcox J—an order that, effectively, Sharman be obliged to alter their software and that there be an ongoing relationship (presumably supervised by the court) in this regard. However, on reflection, I think this is Wilcox J’s attempt to provide certainty to the parties. Paragraph 4 of his proposed orders is the usual and expected injunction, par 5 provides that certain conduct (based on Wilcox J’s findings) will not be taken to infringe that injunction. I think it is Wilcox J’s attempt to avoid ongoing supervision, by setting out a practical way that the Kazaa network can continue to operate without being liable for contempt of court. I’ll be interested to see how Sharman (and, quite possibly, the Full Court) reacts to this.
Fifthly, and relatedly, perhaps this is Wilcox J’s oblique nod to the “wider policy concerns” to which Dr Rimmer refers. Wilcox J robustly dismissed other means by which the record companies suggested P2P users’ behaviour could be modified (e.g., at [300], [303], [340], [351], [405], [407]). Clearly, Wilcox J favoured a purely technical remedy. Given the tenor of his observations, I suspect Wilcox J recognises that the technical modifications are self-defeating (because they will drive users away from Kazaa to other more permissive networks), but sees this as the consequence of copyright law.
Finally, I liked Wilcox J’s dismissal of the faintly-raised “Kazaa has non-infringing uses!” argument (at [183]–[188]). It sits well with the U.S. Supreme Court’s scepticism towards Judge Thomas’s opinion in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd.
