This morning sees the return of the parties in the Kazaa case to the Federal Court for their long awaited appeal. While the earlier case was heard by a single judge (Judge Wilcox), the appeal is to be heard over five days by the Full Bench comprised of Justices Branson, Finkelstein and Lindgren.
The appeal follows the September 5, 2005 judgement, which was dubbed a “landmark” decision by both sides. The judgement guaranteed the continued operation of Kazaa, while the record companies saw the decision as striking at the heart of Internet piracy. At the time, the record companies reportedly said they would not be appealing the decision.
Although widely reported as a victory for the record companies, a Kazaa spokesperson has posed the question: “If they won the case, and they declared their victory, then why are they now appealing?” The spokesperson pointed out that the record companies lost a number of aspects of the September 5 case, including conspiracy claims, trade practices claims, and fair trading claims.
In fact, both sides are appealing, and the appeal will be heard this week.
The record companies come before the Full Bench of the Federal Court after having declared, in an exchange between record industry lawyer Tony Bannon S C and Justice Wilcox, that they do not trust the Full Bench of the Federal Court.
“His Honour: You basically don't trust the Full Court
Mr Bannon: We don't
His Honour: You're treating them like a jury ....”)(See page 45 of 52, of the transcript from January 30, 2006)
According to the Sharman spokesperson, this exchange is symptomatic of the unravelling of the record companies’ case since judgement, and she says, “it is now evident that the Australian record companies intend to shut down Kazaa despite two years of promises not to do so.”
“Hot” topics in the appeal are likely to include the role of filtering, the global nature of the Internet, Audible magic as a solution to the problem of Internet-based infringement, and the meaning of authorisation under Australian law.
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