December 8, 2004
Some Reasons To Care Less About The KaZaA Trial
The KaZaA case could be important in creating chilling effects for technology innovators in Australia (and potentially globally, given the sometime craziness of Internet jurisdiction issues). I’ll grant that. I doubt it will have much effect on P2P, not simply because people are already migrating away from KaZaA, but also because I don’t see secondary liability shutting down distribution of software that a hobbyist programmer can easily create and distribute. But that’s an argument for a different day.
What are we learning from the KaZaA trial itself and the flurry of reports about it? From what I can tell, so far it’s a lot of posturing about two issues. First, does Sharman currently have control over its network? Second, could Sharman create software that allowed the company more control?
The answer to the first question will certainly be interesting, but do realize that if liability rests on this ground (much as it did for Napster) it will have no effect on software like Morpheus, which gives Streamcast no control over its users. A ruling against KaZaA on these grounds could be entirely consistent with the rationale in MGM v. Grokster. I have no idea whether this would represent a chance in terms of Australia’s secondary liability standards, and I’m not saying that resting liability on these grounds is good or bad. I’m just pointing out that it would not necessarily conflict with the recent 9th Circuit ruling here in the US.
The answer to the second question is plainly yes. Of course Sharman could have designed its software differently and could be asked to design all future versions of the software differently. So could Streamcast. The important question is: can we rest liability on their being able to design the system differently? That’s a question the 9th Circuit answered in the negative and will be critical in the ruling in this case. But as far as debating Sharman’s technical abilities at trial, this issue isn’t all that interesting.
Filed by Derek Slater at 4:55 pm under General news
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