[DMCA-Activists] NY Times on KaZaA "Global Fight on Web Copies"

[Seth Johnson]

(Forwarded from NYLXS Hangout list)

-------- Original Message --------
Date: Mon, 7 Oct 2002 23:43:57 -0400
From: Ruben I Safir <address@hidden>
To: address@hidden, address@hidden


http://www.nytimes.com/2002/10/07/technology/07SWAP.html


Music Industry in Global Fight on Web Copies
By AMY HARMON

Having vanquished the music swapping service Napster in
court, the entertainment industry is facing a formidable
obstacle in pursuing its major successor, KaZaA: geography.

Sharman Networks, the distributor of the program, is
incorporated in the South Pacific island nation of Vanuatu
and managed from Australia. Its computer servers are in
Denmark and the source code for its software was last seen
in Estonia.

KaZaA's original developers, who still control the
underlying technology, are thought to be living in the
Netherlands ? although entertainment lawyers seeking to have
them charged with violating United States copyright law have
been unable to find them.

What KaZaA has in the United States are users ? millions of
them ? downloading copyrighted music, television shows and
movies 24 hours a day.

How effective are United States laws against a company that
enters the country only virtually? The answer is about to
unfold in a Los Angeles courtroom.

A group of recording and motion picture companies has asked
a federal judge to find the custodians of KaZaA liable for
contributing to copyright infringement and financially
benefiting from it. If the group wins, it plans to demand an
immediate injunction. Sharman would then have to stop
distributing KaZaA or alter the program to block copyrighted
material, which it says is not possible because of how its
technology works.

Sharman asked the court last week to dismiss the case,
asserting that because the company has no assets or
significant business dealings in the United States, the
court has no jurisdiction over it. Moreover, the company
said, because the Internet does not recognize territorial
boundaries, anything Sharman does with KaZaA at the behest
of a judge in Los Angeles would affect 60 million users in
over 150 countries. Arguments are scheduled for Nov. 18.

"What they're asking is for a court to export the strictures
of U.S. copyright law worldwide," said Roderick G. Dorman, a
lawyer for Sharman. "That's not permitted. These are
questions of sovereignty that legislatures and diplomats
need to decide."

Legal experts say the Los Angeles judge, Stephen V. Wilson
of Federal District Court, may well decide his court has
jurisdiction over Sharman because Americans download
software from its Web site and the company makes money from
showing them advertisements.

The struggle over how to apply sometimes conflicting
national laws to a medium that pays little mind to
geographic boundaries is likely to remain at the heart of
the lawsuit, if it proceeds. While there is broad
international agreement on what constitutes direct copyright
infringement, the penalty for those who enable others to
infringe has not yet garnered such consensus.

None of the entities being sued in association with KaZaA
distribute copyrighted material themselves. Instead, the
software enables millions of people to search for files on
each other's personal computers when they are connected to
the Internet. When a KaZaA user types the name of an artist
or title into a search box, a list of matching files that
other users have placed in a "shared" folder on their hard
drives appears on the screen. The user can then click on an
item to download a copy.

Under the copyright law of most countries, people who use
software like KaZaA to download copyrighted material from
each other would almost certainly be liable for
infringement. The conflict is over whether distributing
software that makes it easy for people to break the law is
itself a copyright violation.

"The question is whether there is liability in making it
possible to infringe," said Jane C. Ginsburg, a professor at
Columbia University who teaches international copyright law.
"If there are genuine markets for the software in different
countries, it could be very difficult to figure out which
law to apply."

In the Napster case, a federal appeals court in San
Francisco found that the company was likely to be held
liable for violating United States copyright law and ordered
it to stop operating until the case could go to trial.
Napster has since filed for bankruptcy and its service has
been defunct for more than a year.

An appeals court in the Netherlands, however, ruled earlier
this year that it was legal to distribute the KaZaA software
there. "Insofar as there are acts that are relevant to
copyright, such acts are performed by those who use the
computer program and not by KaZaA," a translation of the
court's ruling provided by Sharman's lawyers says.

That case is on appeal to the highest court of the
Netherlands, but music industry lawyers say it has little
bearing on the KaZaA case in Los Angeles, even if it is
upheld. The global reach of the Internet, they say, does not
take away the right of the United States to enforce its laws
when they have an impact on its citizens, within its
borders.

"The copyright industries around the world are not going to
stand still and let other companies build businesses off the
sweat of their brow simply because they're willing to set up
shop in some other country," said Matt Oppenheim, a lawyer
for the Recording Industry Association of America.

Nearly three million people typically use the KaZaA Media
Desktop software at any given time, collectively providing
access to half a billion files, Sharman said, roughly double
Napster's usage at its peak. In addition to music, KaZaA
makes it possible to trade other digital files, including
pictures, text and video.

Although a vast majority of files exchanged with the
software appear to be copyrighted works, people also use it
to trade material that is not subject to copyright
restrictions. For that reason, critics have said that
banning it would unnecessarily restrict speech and
technological innovation. They say Hollywood is simply
trying to avoid the daunting process of pursuing individual
users, and a potential public relations backlash from suing
its own customers.

But the entertainment industry has so far prevailed in all
of its legal actions against companies based in the United
States that they have accused of contributing to
infringement. Napster, Aimster and Audiogalaxy have either
shut down or altered their services. Sharman's assertion
that it cannot change its software to screen out copyrighted
material, entertainment lawyers suggest, has more to do with
the advertising revenue it would lose once people could no
longer download popular music and movies than with
technological reality.

Two other companies whose software enables file trading are
named in the Los Angeles case. But one of those, StreamCast
Networks, the distributor of a program called Morpheus, is
based in the Nashville suburb of Franklin. The other,
Grokster, is incorporated in the West Indies but is owned by
a California family.

The difference with Sharman is that even if the
entertainment companies win their lawsuit, the enforcement
of any judgment may rely entirely on legal authorities in
other nations, and their cooperation is not assured. Last
year, for instance, a federal court in San Jose, Calif.,
declined to honor the judgment of a court in France that
prohibited Yahoo from displaying Nazi materials to French
citizens visiting its auction Web site. The court said the
First Amendment principles of the United States trumped the
French ruling, and it would not be enforced.

The Sharman case may well raise again the unsettled question
of whether Internet companies should be forced to adhere to
the laws of every country whose citizens have access to
their Web sites.

Some copyright experts object to that notion, on pragmatic
grounds and because they say it contradicts the Jeffersonian
principle that governments derive their powers from the
consent of the governed. But the alternative, for a company
to be bound only by the laws of the country where it is
headquartered, could lead to a race to incorporate in
countries whose laws are the most lax.

Sharman officials have said that the company is registered
on Vanuatu because of its favorable tax conditions, and that
it will abide by the laws of Australia. Australia is one of
nearly 150 countries that have signed the Bern Convention
for the Protection of Literary and Artistic Works, which
sets minimum levels of copyright protection.

Jurisdictional issues aside, Sharman's lawyers say that
their software is fundamentally different from Napster's
because the company's servers do not control a central index
of what files reside on which of its users' computers. The
company says that even if it ceased operations entirely,
people who already have the software would be able to
exchange files.

The Hollywood companies suing Sharman dispute the assertion
that it has no control over the network of people who use
it. Meanwhile, they are still sorting out who owns what with
respect to the KaZaA program, and what continent they are
on.

Nikki Hemming, the chief executive of Sharman, which is
based in Sydney, Australia, is scheduled to meet with the
entertainment industry's lawyers soon to give a deposition,
though at the request of her lawyers, the meeting will
probably take place in Canada. Niklas Zennstrom and Janis
Friis, who developed the software, are being sought in
Europe. And according to a lawyer for the record industry,
the programmers in Estonia who once possessed a copy of the
program's source code told a judge there last week that they
no longer had it, but they would not say where it was.

-- 
__________________________

Brooklyn Linux Solutions
__________________________
DRM is THEFT - We are the STAKEHOLDERS
http://www.nyfairuse.org

http://www.mrbrklyn.com - Consulting
http://www.nylxs.com/radio - Free Software Radio Show and
Archives
http://www.brooklynonline.com - For the love of Brooklyn
http://www.nylxs.com - Leadership Development in Free
Software
http://www.nyfairuse.org - The foundation of Democracy
http://www2.mrbrklyn.com/resources - Unpublished Archive or
stories and
articles from around the net
http://www2.mrbrklyn.com/mp3/dr.mp3 - Imagine my surprise
when I saw
you...
http://www2.mrbrklyn.com/downtown.html - See the New
Downtown
Brooklyn....

1-718-382-5752

____________________________
New Yorker Free Software Users Scene
Fair Use -
because it's either fair use or useless....