Kazaa case nears end, but still puzzles

Final evidence in the Kazaa file-sharing trial will be heard when court resumes on Wednesday, but making the decision which could change the future of copyright and peer-to-peer won't be an easy task.

The judge hearing the case has already indicated he is struggling to reconcile the opposing issues.

In the third week of scheduled hearings, Justice Murray Wilcox will hear evidence from two more witnesses for the Sharman parties.

KPMG Forensic director and former detective, Rodney McKemmish, and academic and IT consultant, Roger Clarke, will take the witness stand on Wednesday.

Sharman has so far relied heavily on US professors in its evidence to court. Court rulings on peer-to-peer software in the US have favoured or been lenient towards technologies like Kazaa.

Late in last week's proceedings, Justice Wilcox sought the opinion of Sharman witness and US professor Justin Tygar, of the University of California, on the greater issues in the case.

Justice Wilcox asked Tygar how the dilemma of information sharing versus copyright might be resolved.

"I'm just wondering if somebody, say in government, came to you and said 'look what are we going to do with this dilemma, peer-to-peer technology?'" he asked Tygar.

"We want it to be as free as possible, we don't want to impinge on people sharing non-copyright material, but we want to at least reduce, if not eliminate, the amount of sharing of infringing material.

"Where should we start? What track should we go down on the road in working out how to control it?".

In his response, Tygar cited a number of technological measures that could protect copyright, such as digital rights management.

"My belief is that as long as [there is] a substantial non-infringing use of a technology, it's not the technology that can be shut down but individuals who pursue additional technologies", he said.

Justice Wilcox has grappled with the lack of evidence in the case throughout proceedings.

"In this case we don't even know the extent of the non-infringing use," he replied.

"If somebody asked me tonight what is the proportion of infringing material compared to non-infringing, I would have to say, I have not got a clue. The evidence does not reveal that.

"I don't know whether it's 99.5 per cent infringing or 0.45, I have no idea. This is part of the problem, that we know so little about it."

The question for the court, according to the Judge, was how to balance the opposing ideologies.

"Where can the law best strike the balance in terms of what ought to be permitted and what ought not be permitted?" he said.

"Which will cover 90 per cent of the problem or 99 per cent of the problem within the existing technology?"

Major pieces of evidence the record companies have put forward include an internal e-mail from Sharman Networks.

Discovered via the record companies' raids on Sharman early this year, the e-mail contains a short question from Sharman marketing director Michael Liubinskas to chief technology officer Phil Morle.

The email reads: "Phil, thought you should see this too. Why is Top Search not a massive hole in our 'can't control content' argument? Is it that we can only control DRM content?"

Sharman has consistently argued that it is unable to filter copyrighted materials in Kazaa.

The company's US witnesses have also countered that were filters possible, users would soon find ways to circumvent them.

The record companies have also demonstrated to Justice Wilcox a "hidden" function in Kazaa, the ability to send data on the number of connected users to a server in Denmark. This must be the central Kazaa server that can monitor the system, they said.

However, Sharman showed that the data was not received, and the Judge noted that knowing how many users connected to Kazaa was very different to knowing how many infringing files were shared.

Tom Mizzone, of MediaSentry, the US firm employed by the record labels to monitor Kazaa, has also been a key player.

He told Justice Wilcox he could use Kazaa to identify copyright infringement and send warnings to offenders.

Not without the costs associated with developing such expertise, Sharman said.

It is expected that Justice Wilcox will have heard all evidence in the case by the end of the week.

The court is then expected to adjourn until early February, when final submissions will be made.

Justice Wilcox will then decide whether Sharman Networks is responsible for copyright infringement on Kazaa and if so, a possible remedy for the situation -- which could set a precedent for peer-to-peer networks around the world.

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