Excellent article explaining the recent Kazaa case at Weatherall's Law [via BoingBoing]

[The judge] didn't want to absolve Kazaa in this case. He wanted to put a stop to some of the infringement. But he also wanted to make it clear that P2P file-sharing could go on. So he tried to tread a middle path. In my view, the middle path here is unlikely to be a viable one. As I mention below, I think the better approach might have been to frame the rule on liability in a way that would catch the bad actor but avoid imposing liability on all technological innovators.

I first heard of this last night glancing at the news. A lawyer for the record companies suggested, as expected, that they should be compensated for each and every download via the service.

I do not doubt that hundreds of thousands of copyright MP3s have been downloaded via the service (even though most have moved from Kazaa to other services in the past few years).

I do question the right for copyright holders to be compensated for every download. Constant calls for such compensation irritate me.

• An unknown percentage of the downloads would have been legal-to-download, promotional MP3 downloads that made their way onto the network.
• An unknown percentage would have been "grey area" works. That is, live recorded or unreleased tracks. Many artists are happy for fans to download their live concerts. Often their record company is not happy. Also, often live music shared is actually owned by the radio station that broadcast it, not the artist.
• If someone downloaded an album, listened to it, decided they liked it and went and bought that album, should the record company be compensated for that download?
• If someone bought a CD and then downloaded the MP3s of that CD that they already own, should the record company be compensated?

Australia has no fair use laws. It is never legal here to download a piece of copyrighted material. But with the above questions there is no way to decide how much compensation they should get, unless they control the downloading themselves.

The only thing the Judge can do is suggest changes to the technology. He could suggest they set up a service that allows copyright owners to set an "allow copy" bit for each and every piece of material they. To keep the record companies happy you could assume anything not on the list is not-for-copy.

Napster tried this exact thing and burnt itself the death. Any media service who's content is controlled almost entirely by the public simply can't be controlled...