Kazaa Owner To Invoke 105-Year-Old Defence

Sharman License Holdings is planning to present a controversial defense of its Kazaa peer-to-peer software based on a precedent set more than 100 years ago. Sydney-based Sharman will claim in Australian Federal Court next month that it is not liable for copyright infringement by arguing that MP3s do not represent copies of sound recordings.

Sharman counsel JR Ellicot last week referred the Federal Court to the 1899 case of Boosey v. Whight, which found that the reproduction of perforated pianola rolls did not infringe the English copyright act protecting sheets of music. Lawyers in that case argued that there was a difference between playing from sheets of music and playing an instrument with a perforated sheet that forms part of the mechanism which produces the music.

"It will be our submission in this case that we are exactly in that position now in relation to sound recordings," Ellicot told the court.

"That is to say that, however you describe [an MP3 file] on a computer hard drive, it is not a copy of a sound recording, and it also has the implication that even if you take from a CD and put it on a computer, what is on the computer is not a copy," Ellicot added. "An infringing copy has to be a sound recording which is embodied in an article and the question of what is an article will be very relevant."

The Federal Court has told Sharman that it must offer its defense 14 days after Australian labels provide the court with a list of alleged copyright infringements. The 60-page document will be delivered on Monday (May 24).

Ellicot will attempt to further remove Sharman from liability by emphasizing that the company is not responsible for uploading the songs.

Justice Wilcox has gagged both the recording labels and Kazaa and its associates from speaking to the media about the case. Parties are due back in court July 1. Wilcox hopes to set a hearing date for later this year.