The next chapter in the global legal battle between the recording industry and file-sharing services is due to unfold here Monday when the owners of the hugely popular Kazaa software go on trial on civil copyright infringement charges.
"We don't want to shut down Kazaa, just its illegal activities," said Michael Speck, general manager of Music Industry Piracy Investigations, a body set up by major Australian record labels to target copyright infringers.
Kazaa's owners, Sharman Networks Ltd., insist that while they urge users not to commit music piracy, they have no control over what people do with the popular "peer-to-peer" software they provide. With Kazaa, songs, movies and television programs are freely exchanged without paying royalties to the copyright owners.
Industry lawyers say they will try to prove in the federal court case that Sharman can control the illegal use.
The entertainment industry already has sued file-sharing services in the United States. Two federal courts in California have cleared Grokster Ltd. and StreamCast Networks Inc. of liability, though the industry has appealed to the U.S. Supreme Court. Sharman is named in a similar suit whose ruling is pending in a lower court.
Michael Geist, a law professor at the University of Ottawa, said the U.S. cases should not directly affect the outcome of the Australian lawsuit, but all share the principle that a software developer is not directly responsible for the activities of its users, just as Xerox cannot be blamed for copying done on its machines.
It "is a common theme in copyright legislation worldwide," Geist said. He expects lawyers for Kazaa's owners to use similar arguments, "and the court may well respond in a similar fashion."
Alan Morris, executive vice president of Sharman Networks in Sydney, Australia, refused to comment on the case.
Kazaa already has one major court victory under its belt.
In December 2003, the Dutch Supreme Court ruled that Kazaa's Netherlands division cannot be held liable for copyright infringement.
A possible difference in the Australian case is the recording industry's invocation of a rarely used law that allows litigants in civil copyright cases to gather evidence. Investigators earlier this year seized evidence in a series of raids on companies and individuals linked to Kazaa.
A judge has rejected Sharman's efforts to throw out the seized evidence.
A forensic computer analyst is expected to be the first prosecution witness and was expected to tell judge Murray Wilcox what the raids uncovered.
The case -- spawned by the largest copyright infringement investigation in Australian history -- involves Australia's six major recording labels. Defendants include Sharman Networks, Sharman License Holdings and Sharman's Sydney-based chief executive officer, Nikki Hemming.
The trial is scheduled to last up to three weeks and Wilcox is not expected to rule until next year. If Wilcox rules that Sharman is liable for music piracy, another hearing will be scheduled to determine damages and compensation.