SYDNEY, Australia -- Millions of music lovers will soon know if the Kazaa file-sharing software will survive the recording industry's legal assault on the technology in Australia's federal court.
The case against Sharman Networks, maker of the Kazaa peer-to-peer software, is winding down. A decision in the case, which first made headlines in February last year when the music industry executed its controversial civil raids on the Sydney offices of the Australian software maker, is expected in May.
Reporters, law students and observers filled a Sydney courtroom this week to hear the lawyers' final oral submissions to Justice Murray Wilcox. Closing arguments wrapped up Wednesday, with the predictable rhetoric emanating from both camps. The music industry said Kazaa is a "system" that encourages piracy on an unprecedented scale; Sharman Networks says it can't be held responsible for the illegal actions of its users, and that its software has legitimate, non-infringing uses.
Meanwhile, outside the courtroom, peer-to-peer technology continues to thrive. Web, e-mail and instant-messaging applications are the three pillars of the internet, and it's not far-fetched to imagine peer-to-peer technology becoming the fourth. Peer-to-peer has matured and is poised to jump the divide that separates the early-adopting geek from the mainstream internet user, a feat achieved by instant messaging in just a few years.
The explosion in the popularity of BitTorrent and other peer-to-peer software has proved the technology is here to stay. Unless the music industry is completely naive, it knows this much.
It also surely knows that in the grand scheme of things, Kazaa is unimportant software, and Australia is an unimportant jurisdiction. A ruling of interest to cyberlaw boffins and technologists won't force the U.S. attorney general to call an emergency meeting. Regardless of the outcome in the Sharman trial, little will change on U.S. shores, and even less will change on a global scale. It's almost certain the losing side will appeal, and the whole thing will drag out for another year.
Bigger issues are at play. Technology is inextricably linked to progress, and progress is seldom reversed. In the end, the people decide; hot showers will stay hot, computers will continue to sit where typewriters did, cars will be driven by engines and not horses, and peer-to-peer networks will operate as long as people want to use them.
While it's easy to think the music industry has ignored the internet to its peril, it knows a great deal more about the technology landscape, and how to manipulate the public's perception of technology, than many net-savvy observers will admit.
It may surprise some readers in the United States to know that most uses of an iPod in Australia are prohibited. Making a copy of a copyright sound recording in Australia, even between formats, is completely and utterly illegal. Want to put your CD collection on your iPod? Sorry. Too bad.
Considering the iPod was on sale in Australia before legal music-download sites were launched, it's fair to assume that most iPod users in the country were breaking the law. It may also be possible for the music industry to argue, in Australia's courts, that Apple Computer authorized and even encouraged piracy through its marketing and advertising campaigns.
But it's not Apple in the federal court, it's Sharman; the music business knows how to pick its battles. It would look silly attacking the iPod, which has become a cultural object, but its attack against a commercial peer-to-peer operator was a predictable move.
The music industry attacked Sharman, insiders say, because the software maker was earning money as a direct result of the unauthorized distribution of the industry's product, and was doing it in a very public and noisy manner. Whether that's a legal point that can be proved, it's a logical point that stands up to the most cursory analysis. No MP3s on the Kazaa network means a greatly reduced number of users, which means less advertising revenue.
Public perception is important to the recording industry. Could it be seen to be doing nothing while its songs were freely and illegally traded with impunity?
Most who take an interest in the music industry's war on piracy will remember the Recording Industry Association of America's PR disaster when, in 2003, it filed suit against a 12-year-old girl, a Kazaa user, for copyright infringement. The organization was slammed by the press and slated a heartless, lumbering menace. After all, it had sued poor, sweet little Brianna, who was among 261 the RIAA attacked in a sweeping anti-piracy campaign that targeted peer-to-peer users.
Those who were disgusted by the action took comfort in the idea that the RIAA had at least lost some face by wringing thousands of dollars in recompense from a child.
The music industry, both inside and outside the courtroom, seems more than happy to play the bad guy. Scaring the wits out of peer-to-peer users by suing a 12-year-old girl isn't a PR disaster, it's a masterstroke. It's heavy-handed, bordering on brutal, but from the music industry's perspective a sensational story like that is just what the doctor ordered. What were the consequences? The detractors were disgusted. Then they went out and bought CDs.
In modern society, few consumers boycott. If the music industry started selling CDs in baby-seal fur covers, there'd still be buyers. But Brianna's story would have made some people think twice before they downloaded the latest inane pop single, and that's powerful PR: "Could I be the next one sued?"
Technology has delivered a cruel blow to the music industry. Peer-to-peer has given thousands of consumers a taste of what it's like to have an enormous music collection. The effect on a large chunk of the collective consciousness was akin to putting the engine in the horse carriage or adding hot water to the shower. They have thousands of music tracks. They don't want to go back to CDs.
Until the music industry tweaks its business models to suit the peer-to-peer user -- say, 100 tracks a month for a reasonable subscription fee -- it's never going to stamp out internet piracy. The practice will continue and so will the court cases. The irony is that recording cartels continue to contribute to the phenomenon by allowing a market vacuum to stay in place.
The well-paid lawyers, the only guaranteed winners in the Sharman action, are finished arguing before Wilcox. But it's worth remembering that technology has a habit of winning in the end, and an adverse finding against a bit player in a backwater jurisdiction won't kill peer-to-peer. If the music industry wants to survive, it needs to think outside the box and stay out of the courtroom.
