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Kazaa Betamax Defense, Reports From The Courtroom 328

Posted by timothy from the medium-is-the-offense dept.
The Hobo writes "CBC is reporting that Kazaa, mentioned in a previous Slashdot story has mounted the 'Betamax defence.' The prosecution claims Sharman Networks does not enforce their agreement which stipulates users cannot share copyrighted material." Also following the case, Dan Warne writes "Australia's APC magazine is publishing a daily blog from the Kazaa trial proceedings in Sydney's Federal Court. It has some details not reported elsewhere, like the music industry piracy investigation chief apparently losing a $100 bet on the first day of the trial. More seriously, blogging journalist Garth Montgomery says the court heard evidence that Kazaa's software already had the ability to block copyrighted tracks built in, despite Sharman's protestations to the contrary."
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Kazaa Betamax Defense, Reports From The Courtroom More

Kazaa Betamax Defense, Reports From The Courtroom

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  • And if that doesn't work (Score:5, Funny)

    by Anonymous Coward on Wednesday December 01, 2004 @11:40AM (#10963328)
    Then it's on to plan B... The Chewbacca Defense.
    • But that doesn't make sense...

      Oh. Nevermind.

      • Re:And if that doesn't work (Score:2, Funny)

        by Anonymous Coward
        it makes sense.

        Chewbacca is a pediphile. and well, Ewoks... i don't think i should draw a clearer picture...

    • Re:And if that doesn't work (Score:5, Funny)

      by BabyDave ( 575083 ) on Wednesday December 01, 2004 @12:07PM (#10963575)

      Ladies and gentlemen, this is Betamax. Betamax is a high quality video format from Sony, but the consumers chose VHS. Now think about that. That does not make sense. Why would consumers - intelligent consumers - want to live with an inferior video format? That does not make sense!

      Alternatively ...

      Ladies and gentlemen, this is the music industry. The music industry is a price-fixing behemoth, but consumers chose to get their music for free from Kazaa. Now think about that. That ... er, does make sense.

      • And is quite illegal as well as morally wrong. While the music industry is a price-fixing behemoth - stealing someones copyrighted material is wrong (even more wrong since there is nothing that says a company can't charge through the nose for their product).

        Even still, two wrongs do not make a right. I remember when I was young having to choose for our first VCR to be either betamax or vhs.... I chose VHS (i had no idea about which format was better) but I did realize that there was a West Coast Video a
        • Let's abolish copyright!

          Problem solved.

          No, seriously. Let's suppose copyright was abolished tomorrow.

          What do you suppose would happen to the various entertainment industries?

          I can't help it - I'm a sucker for thought experiments.
          • I can't answer such a question, and I am pretty sure that most of us here can't either. Unless there is an analyst around who has done a qualified study if such an event happend....and I cannot see why since copyright won't be abolished (it is a good law - just needs to be updated correctly for digital formats)
          • What do you suppose would happen to the various entertainment industries?

            All of a sudden, the live performance industry goes BOOM!

            • "All of a sudden, the live performance industry goes BOOM!"

              However...lets pass a law making a lable warning of lip-synching at the concerts be prominately displayed...so, we know what we're getting!!

              :-)

          • Re:In that case (Score:3, Insightful)

            by mOdQuArK! ( 87332 )

            What do you suppose would happen to the various entertainment industries?

            Distributors of recordings (both audio & video) would probably go out of business, or at least be reduced to providing support to local and corporate-sponsored groups who wanted a large distribution of particular recorded performances. Local and/or touring, live performances (bands, theater, etc) would become more popular (and hopefully affordable) again (probably do wonders for diversity, if not quality).

            The government would sti

        • I'm sorry, but I don't see why copyright infringement is morally wrong. Perhaps you'd care to share your thoughts on the matter?
          • I created something. I want to keep it private, or limit distribution. I invested my time and possibly my money - I want to recoup this investment. Someone out there likes my idea - my work - but they do not want to pay for it. I should be able to have my work protected from people like that. Let me put it in another way - -- you go to work everyday (i presume) - would you appreciate it if your boss said "you are not getting paid for your work"?
            Copyright infringement is stealing someone elses work -
            • I created something. I want to keep it private, or limit distribution. I invested my time and possibly my money - I want to recoup this investment. Someone out there likes my idea - my work - but they do not want to pay for it. I should be able to have my work protected from people like that.

              None of that supports a claim of immorality as to infringement. You're just saying that you are greedy and want to be paid, and other people are greedy and don't want to pay, and therefore their greed is not merely di
          • The supposed immorality of copyright infringement is based on a claim of financial injury, in that the owner does not recieve payment for each copy read or listened to or installed:

            * The claim of financial losses or damage is mostly inaccurate because it presupposes that the copyist would otherwise have bought a copy from the publisher. That is occasionally true, but more often false; and when it is false, the claimed loss does not occur.
            * The claim of loss or damage is partly misleading because
      • Very funny, but as an aside, people choosing VHS over Betamax did make sense (at least at the time). Sony would not licence the Betamax technology to any other company. JVC on the otherhand freely licensed VHS to anyone who wanted to make a player/recorder. We all know from our economics class that high supply against low demand generally results in a lower price. So consumers gobbled up the VHS players, and BetaMax players were left to those who would spend the money for the better quality. Intel lear
        • Or it could be that VHS started out with a 2 hr tape, and Betamax was only one hour. Most people I know who had to make the choice and picked VHS did so because of that one factor. I don't remember the prices really being significantly different at the time -but its been a while, and memory being what it is...

  • It might not even go straight to DVD! (Score:5, Funny)

    by garcia ( 6573 ) * on Wednesday December 01, 2004 @11:41AM (#10963337)
    But Speck's hundo was the smallest coin exchanged on this day. With 5 legal teams in total, the amount being spent is inconceivable. Some QCs are on as much as $10000 a day and Dispatch hears that Bannon alone is on $6000 a day, but his performance is said to be worth it.

    If only the MPAA would realize how worthwhile this could be for them! They could take these "actors" who are charging such low rates as $6000 a day and use a prewritten, sensationalist script already available in electronic form, and go ahead and produce this "movie" for everyone to see.

    It's already funny, full of fictionalized reality, and cheap! They can take it right now off of the Internet and reproduce it for their own personal use! People might actually go and see this remake. It would certainly be better than the recent remake of Walking Tall with The Rock. I'm sure he charges more than $6000 a day to carry around a huge cedar 4x6 in the bed of a pickup truck.

    Just a thought.

  • Betamax defense? (Score:5, Funny)

    by DrStrangeLug ( 799458 ) on Wednesday December 01, 2004 @11:41AM (#10963338)
    You mean they're claiming that it doesn't matter 'cos they'll lose the format war to an inferior product?

  • oooooookay..... (Score:2, Insightful)

    by JeanBaptiste ( 537955 )
    "Garth Montgomery says the court heard evidence that Kazaa's software already had the ability to block copyrighted tracks built in"

    Really. I thought it was illegal to lie in court. Perjury I think its called. How the bleep would kazaa know which group of bits are copyrighted and which bits are not...
    • if (!copyrightBit) {
      return songName;
      } else {
      return COPYRIGHT_ERROR;
      }
      The copyright bit is set right next to the evil bit. Duh.
    • And I thought the "demonstration" proved exactly why filtering won't work.

      Apparently, the "adult" filter uses a list of "adult" words and filters out all files containing those words. The "demo" clearly showed that filters don't actually know what's really adult material vs. a file containing the wrong word, sex in this case. Which may be why nobody downloads the Sextant Manual I wrote.

      So how do you create a list of files to filter that will remove all copyrighted works without filtering out everything?

      T
    • Really. I thought it was illegal to lie in court. Perjury I think its called.

      You must be new here. Haven't you ever read a SCO article?
    • "Garth Montgomery says the court heard evidence that Kazaa's software already had the ability to block copyrighted tracks built in"
      Really. I thought it was illegal to lie in court. Perjury I think its called.

      No. It's only illegal to lie under oath on the stand. Mongomery is making a case, and is only saying things he believes will support his case. It does not have to be true. It might be proved false by the other side. Ultimately it's up to the jury to decide if the prosecution's claims hold water.

  • It's been said in other threads... (Score:5, Insightful)

    by CodeWanker ( 534624 ) on Wednesday December 01, 2004 @11:48AM (#10963398) Journal
    but it bears repeating here. The entertainment industry treats it customers like criminals, and then they wonder why they are resented. I do not pirate multimedia files. I buy what I watch, listen to, and play. While I certainly don't agree with someone saying, "Well, they treat me like a criminal, so screw em, I'm stealing it" I can understand it.

    Piracy sucks. People who copy files and use them forever under the guise of "deciding if I want to buy it" are wrong. But the people who make file sharing and file copying software aren't wrong and need to be left alone.

    • Re:It's been said in other threads... (Score:5, Insightful)

      by pixelpusher220 ( 529617 ) on Wednesday December 01, 2004 @12:04PM (#10963553)
      Exactly. Here's my story of criminal treatment, or at least intimidation...

      I didn't have TV over the summer so wasn't able to see the new series Stargate Atlantis first episodes. Once I turned TV back on I decided to go catch up. Used BitTorrent to download the episodes (TV rips, not on DVD so where else to get them?). I figured I'd leave the torrent active to give other people a chance to see them too.

      Gee a day later my cable acct is suspended due to a C&D letter from MGM.

      Now I *own* every SG-1 DVD set out there, I would likely have bought the Atlantis ones too, but now...fsck 'em. Still haven't watched the episodes either, and probably won't.

      The 3 months without TV in the house really made me aware how much we are beholden to the media giants...it's nice to tell them to screw off...in a legal way :)


      • I didn't have TV over the summer so wasn't able to see the new series Stargate Atlantis first episodes. Once I turned TV back on I decided to go catch up.

        I think we can agree it's their show, right? So, why don't they get to say when you can watch it, or more plainly, what gives you the right to download it via BitTorrent? Atlantis has been in reruns all fall.
        • Fair enough but lets say a friend taped it for me to watch later. That is clearly covered under the Betamax decision. It's called time shifting - though the 3 months in this case is a tad extreme I agree.

          My point being though that because of their stupid antics I probably won't ever give them any revenue from this show. And that I seriously would have before this C&D letter to my cable ISP.

          What I really should do is figure out who their current commercial sponsors are and write a letter saying
          • I hear you - at this point Atlantis is pretty dumb.

            Most shows take a couple years to get going if they're going to get going. The majority get canceled or fester (e.g. Voyager).

            I'd love to be able to stop watching Atlantis for two years, and if I hear it's good, BitTorrent the first two seasons and catch up. We're talking about possibly wasting 22 hours a year on something with no future here. I've already given up on Enterprise but I hear it's better now but I have no way to catch up.

            MGM and Paramoun
        • one more nit...

          It wasn't the downloading they objected too (legally anyway) it was the torrent from my machine serving it back for others to download from.


    • Re:It's been said in other threads... (Score:2, Insightful)

      by Anonymous Coward
      What I find ridiculous is that bought media is often difficult to use - My girlfriend got a CD last Christmas which wouldn't play in my MP3 supporting car CD-player, or her stereo. It was, of course, perfectly readable by my computer. One direct, nothing-fancy copy later, I had a burned copy of the protected CD that would play fine both in her stereo, and in my car. We didn't want to copy it, but we _HAD_ to in order to actually use it.

      How does copy protection like this reduce piracy? I could quite eas
    • I think the MPAA and RIAA types, as well as their counter-parts in other countries, should take a minute to read through this essay by Eric Flint:
      http://www.baen.com/library/ [baen.com]

      A short quote from the essay:
      "My own opinion, summarized briefly, is as follows:

      "1. Online piracy -- while it is definitely illegal and immoral -- is, as a practical problem, nothing more than (at most) a nuisance. We're talking brats stealing chewing gum, here, not the Barbary Pirates.

      "2. Losses any author suffers from piracy are

  • Shame they didn't try the Chewbacca Defense (Score:3, Informative)

    by CptSkydrop ( 577286 ) on Wednesday December 01, 2004 @11:51AM (#10963441) Homepage
    The Chewbacca Defense is a satirical term for any legal strategy that seeks to overwhelm its audience with nonsensical arguments and thus confuse them into failing to take account of the opposing arguments and, ultimately, to reject them.

    http://en.wikipedia.org/wiki/Chewbacca_Defense [wikipedia.org]

  • The Betamax Player defense (Score:4, Funny)

    by oexeo ( 816786 ) on Wednesday December 01, 2004 @11:52AM (#10963453)
    I prefer the Betamax Player defense; it involves indefinitely hitting the *AA over their arrogant heads with an industrial Betamax Player
  • The enemy of my enemy is still a piece of shit.
    Frankly I don't care who wins, so long as they both blow lots and lots of money on this case.
    I guess I'd rather have KaZaA obliterated so its users would move to a more sane, less spyware-laden application (Shareaza comes to mind).

  • Betamax Decision (Score:5, Informative)

    by which way is up ( 835908 ) on Wednesday December 01, 2004 @11:54AM (#10963470)
    Sony v. Universal, more commonly known as the Betamax decision. The key points of the Betamax decision are:

    1. [The] noncommercial home use recording of material broadcast over the public airwaves [is] fair use of copyrighted works and [does] not constitute copyright infringement
    2. [The law] does not support [...] theory that supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement
    3. The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses.
    4. [U]nauthorized home time-shifting of [television] programs is legitimate fair use

    The last point is the key one here: EVEN IF the copyright holder does not authorize you to make a copy for your personal use, you are STILL legally entitled to do so.

    Copyright is NOT an absolute monopoly on the duplication of a published work -- no matter how they whine, the copyright cartels cannot deny you your LEGAL fair use rights.
    • The last point should not apply. When you are downloading from Kazaa you are not timeshifting; you are making a(n unauthorized, maybe) copy of a [potentially] copyrighted work. The only part of that which applies to Kazaa is #2. They provided the means and they advertised the means.

      • Re:Betamax Decision (Score:4, Insightful)

        by MikeBabcock ( 65886 ) <mtb-slashdot@mikebabcock.ca> on Wednesday December 01, 2004 @12:10PM (#10963601) Homepage Journal
        That's not true -- I use BitTorrent to download Alias episodes because I'm never home on Sunday nights. I watch them on Monday nights with my wife. That's time-shifting.

        I get CTV [www.ctv.ca] so I *could* watch it on Sunday night, were I home.
        • I do the same and I dont consider it piracy at all. I download Enterprise from BT because I'm out on Friday nights. I also pay for cable TV so I figure I'm entitled to it. Sure, I've got a PC laying around with a TV tuner card and I *could* roll my own tivo al la mythpc, but this just suites me better.

          Now if I could only get RSS and Azureus to work together.
        • Ah, but BT both reproduces and distributes. Claiming that it isn't infringing to reproduce so as to time shift doesn't help a bit when it comes to distribution. Giving out portions of the work to others isn't necessary for time shifting.

          So I think your argument would fail, particularly as just because courts don't normally let people stand in the shoes of other fair uses -- you have to show that the distribution is fair by itself without reference to who's on the other end.
    • I would caution against reading Sony to support the notion that timeshifting (or indeed anything) is always a fair use. Only that it may be. Whenever the fair use defense is employed, the court must examine the specific circumstances involved to determine if a fair use occurred in the case before it. Sony doesn't contradict this IIRC.

      So it's more accurate to say that some, perhaps even most or all actual instances of time shifting are fair uses, but not that every possible or actual time shift necessarily

  • at the end of the day (Score:3, Insightful)

    by Exter-C ( 310390 ) on Wednesday December 01, 2004 @11:55AM (#10963477) Homepage
    At the end of the day Kazza has probably done more good work for the music industry than damage. Most of the people downloading music on kazza would be sub 24. And more often than not the music isnt of the best quality encoding.. often taking several downloads to find the righ copy. I know that all of my fellow users download the music they like then go and buy it from itunes or whatever other music service they choose. That way they are supporting the artists without having to buy a crap cd with 10 tracks you dont want for the one song you do.

    In the UK its been shown that record sales are actually UP.. so what is all the waste of time about? battle of the corporate greed.
    • Once you've got a fair mp3 collection and a USB/Firewire external drive case with a 40gb HDD in it, P2P becomes pointless... you get far better results from swapping mp3 collections with friends.

      A Ford saloon car carrying a hard drive with 15,000 mp3 tracks in high-quality bitrate on it both has more bandwidth than most p2p systems and is undetectable to the RIAA....
      • Sneakernet works best for movies and tv shows in my opinion. When I want mp3s, I'm usually looking for a particular song or album.

        Linux ISOs aren't too bad either.
      • Once you've got a fair mp3 collection and a USB/Firewire external drive case with a 40gb HDD in it, P2P becomes pointless

        What about new releases? What about people who "scout" for new music? I'm not trying to be a piracy advocate but when someone says "What do you think of band XYZ" and I don't know band XYZ I normally try to find out something. For the most part MP3s that I have downloaded either lead to a CD sale or end up in my recycle bin. Maybe that's the record companies real beef with music swapper

    • That way they are supporting the artists without having to buy a crap cd with 10 tracks you dont want for the one song you do.

      I usually prefer not to support artists which only have one listen-able track on their albums. It usually means they're a fabricated band that doesn't actually have any talent.

      I've found over the years that if I'm not likely to enjoy the whole album, the first song is a piece of fluff that in two years will have become hackneyed and overplayed.

      But I'm not bitter. :-P

  • Learning from history (Score:3, Interesting)

    by Anonymous Coward on Wednesday December 01, 2004 @11:55AM (#10963482)

    Funny historic fact, Kazaa (the software) "fled the country" to avoid these lawsuits.

    In the early days of Kazaa its authors sold it to sherman networks in australia the moment their legal problems got to hot. I recall one of its authors mentioned that he expected to get either get very rich or end up in jail "real soon" in an interview. Quite the imagination considdering it was a civil lawsuit with the recording business bully he was dealing with. Ofcourse the spyware could get him rich... or in jail, as people could think of it as cracking personal computers ;-) They sold for a ridiculous low figure. Afterwards they won in appeal [seclists.org].

    So for everyone in legal trouble with big business out there, not all judges will rule against the smallest purse. It may take time money an patience to get them to understand the issue though.

  • This is an interesting situation. We all know Sharman networks tried to enforce their spyware upon file sharers, and they shut down Kazaa lite for this. They deserve to be punished...

    but if they are... then it could become a legal precedent against file sharing networks (and free speech perhaps?)

    Either way, file sharers lose.

    But then again, who still uses Kazaa, anyway?
    • Like it or not, KaZaA was in the right there, at least if you accept propriety software can ever be right. They state clearly that they will install spyware (OK they don't use the term but they make it pretty clear what it does) and that you need it to run the program, and that you're not allowed to redistribute without it. KaZaA Lite was violating copyright and they knew it, and even said basically "this program is illegal, do not use it" on their site.
  • I'm curious about the "not enforcing agreement" charge that the prosecution is making. First, I am wondering what legal basis this agreement falls under. It is not a copyright license. It could be construed as a contract. If so, then that contract would be between kazaa and it's users. Anyone who is sharing music which they do not have legal permission to redistribute would be in breach of contract, and thus kazaa could sue them. But is there anything in the law that says they have to? Why would a third par
    • Oh, well, I don't know from Australian copyright law, but in the US it's quite easy for one person to be found liable for the infringements of another person. (not as a substitute, mind; they're both liable)

      The first way to do this is contributory liability: material contributions to the infringement of another, knowing of the infringement, are themselves infringing.

      The second way is vicarious liability: if you have the right and ability to prevent someone from infringing but you don't, and you profit fro

  • Machine or Service? (Score:5, Insightful)

    by RealProgrammer ( 723725 ) on Wednesday December 01, 2004 @12:09PM (#10963592) Homepage Journal
    • the court heard evidence that Kazaa's software already had the ability to block copyrighted tracks built in, despite Sharman's protestations to the contrary.

    First, almost everything is copyrighted. We need new terminology, but for now saying "commercial" is better than saying "copyrighted" to describe works for which the author wants payment to allow copying of it.

    Second, that the software can do it is not the whole point. There is a business infrastructure that would have to be built around the blocking feature, since someone (or a throng of someones) would have to maintain that information. The feature is worthless without maintenance. I don't think it would work even with a crew maintaining the information ala an antivirus company.

    Kazaa argues that their product is just a machine like a copier, a VCR, or a knife. It only does what its user has it do. The other side says they are more like Kinko's or a publisher, with a legal responsibility to monitor what they copy.

    It's obvious to me that Kazaa is just a machine, but you never know what will happen in a court room.

    • that the software can do it is not the whole point.

      Of course not, the point is that its nearly impossible for the software to be able to do this. The claim in court under oath that Kazaa is capable of this is flat out perjury, and knowing these people, they probably KNEW it to be a lie.

      How would you have it do this? Filename? (PFf yeah right) Hash of the file (change a byte and the file is no longer copyrighted) "Audio fingerprinting" like some companies claim to be able to do? (Best bet, yet I'd bet a
  • Babelfish link anyone? I can't figure out what a "spiv" is, QC versus SC (something counsel?), etc. The only Australian I know I learned from Foster's commercials...

  • Since when does US law apply in Australia? (Score:4, Insightful)

    by Lonewolf666 ( 259450 ) on Wednesday December 01, 2004 @12:23PM (#10963718)
    From the articke:

    Lawyers for the file-swapping service Kazaa argued in an Australian court Monday that its software is analogous to the old Betamax videocassette recorders.

    Lawyer Tony Meagher drew on a 1984 ruling from the U.S. Supreme Court...

    Any lawyers here that can explain how a precedent from a US court has any bearing in Australia??
    • Precedents from other jurisdications can be used as persuasive precedents by courts, both in the US and outside the US. This is in contrast to the authoratative precedent of local jurisdiction.

      For example, when the SCOTUS rules against Anti-Sodomy laws in 2003, they drew upon international precedents as a partial basis for their ruling.

      http://www.danieldrezner.com/archives/001421.htm l
    • IANAL, but I have a friend who's a law student, and at some point in the past I asked him about this. Apparently Australian courts are open to the possibility of using precedent from other Common Law courts when there's nothing applicable in Australian courts. I imagine that's especially true in today's climate of harmonisation of laws between nations.

      I think an example of this is that Australian courts have used various rules set in American courts with regards to software patents.

      We might be an independ

  • The Rules: Play by Them, Please. (Score:5, Insightful)

    by Onimaru ( 773331 ) on Wednesday December 01, 2004 @12:31PM (#10963789)

    I don't like the trend in litigation lately. It's begging for judicial activism...asking point blank for the courts to neglect their duty to the law.

    So many suits these days are not about someone doing something illegal, but rather about someone doing something you really really wish was illegal. This case is a prime example -- it's clear to anyone who's had first year Con Law that Kazaa is totally safe. But here we have some people who really wish it wasn't true, so they get their day in court and a chance, however slim, to write new law in the courts instead of the legislature.

    The SCO case comes to mind, too. People get an idea of how they wish the law was, and sue based on that. Not just evil people, either: I seem to remember a recent case where a duly enacted law extending copyright protection was challenged in a court, not a legislature.

    Of course, it would be easy to say that these people are just wrong, wrong, wrong for abusing the judicial system this way, but I think the problem goes a little deeper. People feel disenfranchised in the legislature. As soon as they elect someone, they're whisked away by the highest bidder and don't have to listen to you again for another few years. Once every few years isn't enough time to get your representative/senator's ear. The courts always have to listen to you, right now, and make a decision based on the merits of your case. That seems like a pretty attractive alternative.

    Politicians are often said to have a social "contract" with their constituents. But we all know what verbal contracts are worth. I want it in writing next time. What are you promising me? What are you promising not to do?

    And, when / if the time comes, I want to be able to sue you for specific performance.

  • Hit 'em with the Morpheus [com.com] Defense, Lazlo [imdb.com]!

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