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Slippery Kazaa

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We have been following the entertainment industry’s attempts to wrestle Kazaa to the ground using the courts, the way they shut down Napster and Madster. The Washington Post has a fascinating look at Kazaa, the attempts to shut it down, and how they have thus far been thwarted, causing the RIAA and MPAA to turn blue in the face:

    Roughly 160 million people have downloaded the software, primarily to trade music, TV shows and movies over the Internet. At any given time, more than 3 million people are running the program, double the number that Napster had at its peak.

    Kazaa has become so popular so fast that a coalition of entertainment companies has filed suit in U.S. District Court in Los Angeles, seeking to shut it down. The coalition says the service has become a “candy store of infringement,” where millions of pirated copies of songs, writings, TV shows and motion pictures are available to anyone, free.

    Those same arguments helped the entertainment industry successfully close down Napster. But going after Kazaa is proving more difficult.

    That’s because Kazaa is a multinational creation. The three young men who developed the software hail from Estonia. They were commissioned to do the work by a company in the Netherlands. That company has since sold the software to another based in the Pacific island nation of Vanuatu, whose executives work in Australia.

    Filing suit against Kazaa, therefore, has forced the entertainment industry to negotiate the legal rules of no fewer than five countries on three continents.

    This case “is one in a series of skirmishes that will determine whether the information network the public enjoys five to 10 years from now is open or closed and to what extent different countries will have a role in controlling it,” said Jonathan Zittrain, co-director of the Berkman Center for Internet & Society at Harvard University.

    ….Lawyers for the Recording Industry Association of America and Motion Picture Association of America, on the other hand, have issued a statement saying Kazaa is perpetrating an “intricate international shell game aimed at evading the U.S. court’s jurisdiction and avoiding liability” by spreading its operations around the world.

    “They did it intentionally to get around the Napster decision,” said Matthew J. Oppenheim, one of the entertainment industry’s lawyers.

    Kazaa’s founders scoff at the claim. They say the involvement of people from so many countries is happenstance, a product of how easy it is to do business across borders in the Internet age.

    ….The defendants, which in addition to Kazaa include Grokster and Morpheus, contend they are doing nothing wrong. They said their role is analogous to photocopy-machine makers, who aren’t responsible for people who copy entire books, or to computer makers, who aren’t responsible for people who use their machines for hacking.

    “If you can be held responsible for everything your end users do with it, it becomes very hard to build any technology,” said Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, which represents Morpheus creator StreamCast Networks Inc.

    The entertainment industry argues that the Kazaa case is different because the key issue is motive. While some makers of technology truly aren’t aware of or do not advertise the illegal aspects of what their technology can do, they say, the owners of these file-sharing systems do.

    “Peer-to-peer services overwhelmingly are used for illegal copying and transmission of copyright material over the Internet, and actively encourage, assist and participate in this activity,” said Allen N. Dixon, executive director of the International Federation of the Phonographic Industry, which represents more than 1,500 music producers and distributors.

    But even if the entertainment industry wins its legal fight against Kazaa, industry experts said it’s unlikely that the software will disappear.

    “For each one that is shut down, others will arise,” said Forrester Research analyst Josh Bernoff.

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