With Friends like these ....

With friends like these ...

Following up on a suggestion that we do an intellectual property rights piece I checked out the ongoing Kazaa case currently running in Australia. Nice little newsfeeder came up with some readable links. The most interesting of these were from something called 'The Register' which has been tracking the story.

Follow the links if you are interested in the case itself. What interested me was the way this publication - healthily oppositional in its editorial position - began arguing from within the rhetorical frame set up by the prosecuting lawyers. Basically the legal rhetoric of the prosecution was that if Sharman (the Czar of Kazaa!) could claim to block child pornographers (why only child pornography?) using the Kazaa Peer to Peer (P2P) network, then he could therefore also block music file exchanges which infringed copyright.

Sounds good. Especially with something as emotive as child pornography. It's annoying though, because the Kazaa conditions of service don't say any such thing. The Register simply repeats the defense lawyer's case - the basic defense - that Kazaa has just provided a technology and is not responsible for how it might be used. (Like VCRs, photocopiers - remember that one?). Sound, but a bit like using trench warfare to take out a sniper, in my view. I suppose it does serve the purpose of promoting the basic defense argument through repetition yet again.

Seems to me it would have been easier to pick holes in the dishonesty of the verbal slither from "reserves the right" (ie: claims the right) [to bar child pornographers from accessing Kazaa and its services] to misrepresenting that as a legal commitment to "boot off" porn peddlers. 'Reserving the right' is a legal protection (ie:from someone who might have been booted off and might sue), not a legal commitment.

The Judge seems to have seen through that particular tactic, but is obviously wearied by the effort. Understanding it all through the prism of the interests of the music 'industry' is all so demanding. He has announced that he has taken time off to hand down his decision "to accommodate the needs of the recordig industry". He needs more time to think it through. Poor man. He has a headache. Give him all the time he can take, is all I can say. (Does it have to be on a QC's salary, though?)

My real concern is that even if this judge is given all the time in the world, the fumbling of the quibble could establish precedents that will weaken future cases which depend on the increasingly fine definition of difference between patent law and copyright law. The problem faced by legal thinkers today, with Internet technology, is an old philosophical one - the difference between a text and a machine. Programs have always been built into hardware (ie: 'hardwired') and now specific programs (for mobile phones and other mass usage communications technology) are being built into our day to day instruments more and more. The programming moguls ie: Microsoft) are vertically integrated with the chip manufactuers (like Intel and Microsoft) and are working to establish a 'virtual monopoly'. One method is to revise the protocols that hitherto have kept the net open. Demand for broader bandwidth is being framed to favour the hegemonic position of Microsoft in the platform for software applications. Which would be hardwired into hardware circuits and chips.IT and the Internet have made the distinction between a machine and a text ambiguous through this kind of crossover, a crossover that entails a potentially damaging potential for society in legal interpretations of intellectual property law. It presents a challenge to a legal system predicated on humanistic principles..