The makers of popular file-sharing software KaZaA have to make it impossible for users to continue to share copyright-protected material using the software, or pay a fine for each day the product remains unchanged, a Dutch judge ordered Thursday.
In a case brought to the Amsterdam district court by Buma/Stemra, an organization that represents composers, songwriters and music publishers in the Netherlands, Judge R. Orobio de Castro found that because KaZaA BV does not have a license from Buma/Stemra it is acting unlawfully by making software available that allows users to download music files.
KaZaA has 14 days to comply with the order. If it doesn't, the company will have to pay 100,000 guilders (US$40,000) a day, with a maximum of 2 million guilders, the judge ruled.
KaZaA is puzzled by the verdict and it doesn't understand exactly what to do, said KaZaA's attorney Christiaan Alberdingk Thijm.
"Our software can't disappear, it is already out there," he said. "And the minute we take down our Web site, mirrors will appear."
KaZaA is so-called peer-to-peer (P-to-P) software that allows users to search each other's hard drives for files they want and to download those. KaZaA doesn't require a central server to work, unlike Napster, which was shut down when it installed filters on its servers after a legal battle in the U.S.
"At trial, we asked the judge to be clear in his verdict if he was going to side with Buma/Stemra. Now we don't know what to do. Should we go door-to-door and ask people to stop using the software? Should we put a notice on our Web site? Whatever we do, it will always lead to a new conflict with Buma/Stemra," Alberdingk Thijm said.
KaZaA is weighing its options and might appeal, Alberdingk Thijm said.
A spokesman for Buma/Stemra declined to comment, saying the company had not yet studied the verdict.
Users won't be affected by the verdict, said Lee Black, research director at analyst firm Webnoize Inc., who called the ruling the fruit of "a judicial system that doesn't understand the technology it is trying to regulate."
"You could take down the KaZaA Web site and prevent anybody from downloading the application from there, but you can't prevent users from launching the client and accessing the network," he said.
KaZaA is based on P-to-P technology developed by Amsterdam-based FastTrack BV, which is closely related to KaZaA. Two other P-to-P applications, MusicCity Networks Inc.'s Morpheus and Grokster Ltd.'s Grokster, also use FastTrack's technology. Thursday's verdict does not affect those products, according to Alberdingk Thijm.
Applications based on FastTrack's technology are rapidly gaining popularity, according to Webnoize. Consumers transferred 1.81 billion digital media files using any of the three applications during October, a rise of 20 percent from the 1.51 billion files downloaded during September, according to Webnoize, which estimates that about 500,000 people use KaZaA at any given moment.
There is a way to kill KaZaA, Morpheus and Grokster all at once, according to Webnoize's Black. Copyright holders have to go after FastTrack.
"KaZaA is just the consumer-facing side, FastTrack is the P-to-P stack and has demonstrated in the past that it can change the configuration of its network to lock out an old version of an application," he said. "The next judge's order will be for FastTrack to change the network."
In the U.S., the Recording Industry Association of America Inc. (RIAA) and the Motion Picture Association of America (MPAA) have filed suit against KaZaA, Morpheus and Grokster.