9/5. The Federal Court of Australia issued its judgment in Universal Music Australia v Sharman License Holdings, holding that the distribution of Kazaa file sharing system by Sharman and others violates Australia copyright law.

This is a long document, with 526 numbered paragraphs. It holds Sharman and five other respondents liable for copyright infringement under Australian law. The Court also concluded that both public education regarding copyright infringement, and lawsuits against individual infringers, are likely to have little impact. The Court also noted that the June 27, 2005, opinion [55 pages in PDF] of the U.S. Supreme Court is not pertinent to the present case. The Court also stated that it will issue an injunction.

The Court concluded that the Kazaa system is widely used for the sharing of copyright files and that "each of the respondents was aware that a major use of the Kazaa system was the transmission of copyright material"

The Court wrote that witnesses testified that "Kazaa could be used in a non-infringing way", such as to share the works of Shakespeare or Milton. Moreover, it concluded that "some people use Kazaa only in a non-infringing way". However, it concluded that "it seems unlikely that non-infringing uses would sustain the enormous Kazaa traffic claimed by the respondents. The explanation of that volume of traffic must be a more populist use. ... The evidence indicates that use is popular music."

The Court continued that "It is understandable that the respondents would wish to increase file-sharing. Kazaa is apparently sustained by advertising revenue. It is a fundamental of advertising marketing that price is sensitive to the exposure likely to be achieved by the advertisement. The more shared files available through Kazaa, the greater the attraction of the Kazaa website. The more visitors to the Kazaa website, the greater its advertising value and the higher the advertising rate able to be demanded by Sharman. And what is more likely to attract large numbers of visitors to the website than music, especially currently popular ‘hits’?"

"In short, I find that all the respondents knew the predominant use of Kazaa was for the sharing of copyright-infringing material. None of them had an interest to prevent or curtail that predominant use; if anything, the contrary. Each of the respondents was at least acquiescent in the use of Kazaa for copyright-infringing activities."

The Court then concluded that respondents could have, but did not, employ various technological measures, such as filtering, that would have reduced the amount of copyright infringement by users.

The Court also concluded that the respondents had done little to educate the users about copyright infringement. However, it concluded that public education on this matter would have little effect. It wrote that "I have no reason to believe any significant number of Kazaa users, apparently mainly teenagers and young adults, has any knowledge about, or interest in, copyright law or its application to file-sharing. Nor have I any reason to believe that any significant proportion of users would care whether or not they were infringing copyright. The ‘Join the Revolution’ material displayed on the Kazaa website and the ‘Kazaa Revolution’ T-shirt indicates the Sharman respondents perceive they might not. While I agree with the applicants that the existing warnings do not adequately convey to users what constitutes breach of copyright, I am not persuaded it would make much difference if they did."

The Court also examined respondents failure to take any legal action against individual infringers for violation of the license agreement, which prohibits infringement, but is widely violated. The Court concluded that "it is not realistic to believe legal action against individual infringers will stamp out, or even significantly reduce, file-sharing infringements of copyright."

The Court conclusions on these two points, regarding the futility of public education and suits against individual infringers, contrasts with the procedures being employed currently in the United States. The content industries currently seek to educate consumers about copyright infringement, and to involve government agencies in this process. Moreover, the record industry has brought thousands of civil actions against individual infringers.

The Court then applied the facts of the case to Sharman, and "held that Sharman infringed the applicants’ copyright". The Court also found that five other corporate entities and individuals also infringed copyrights, "individually and as joint tortfeasors pursuant to a common design".

The Court ruled for the respondents on several non-copyright claims, including violation of the Australian Trade Practices Act.

Finally, the Court wrote that "it is appropriate to grant an injunction to restrain future infringements of the applicants’ copyrights. This injunction should be couched in general terms, reflecting the relevant respondents’ general obligation not further to infringe the applicants’ copyright. However, I am anxious not to make an order which the respondents are not able to obey, except at the unacceptable cost of preventing the sharing even of files which do not infringe the applicants’ copyright. There needs to be an opportunity for the relevant respondents to modify the Kazaa system in a targeted way, so as to protect the applicants’ copyright interests (as far as possible) but without unnecessarily intruding on others’ freedom of speech and communication. The evidence about keyword filtering and gold file flood filtering, indicates how this might be done. It should be provided that the injunctive order will be satisfied if the respondents take either of these steps. The steps, in my judgment, are available to the respondents and likely significantly, though perhaps not totally, to protect the applicants’ copyrights." (Parentheses in original.)

"Accordingly, I propose to make an order restraining the six infringing respondents from further infringing the applicants’ copyright in any sound recordings by authorising the doing in Australia by Kazaa users of any infringing acts, in relation to any sound recording, the copyright of which is held by any of the applicants, without the licence of the relevant copyright owner."

The Court also commented on related litigation in the U.S. The Court wrote that MGM v. Grokster has no effect on the present case.

The Court wrote that "On 25 April 2003, the Federal District Court in Los Angeles summarily dismissed an action brought by various copyright holders against corporations allegedly associated with two United States-based peer-to-peer file-sharing systems, ‘Grokster’ and ‘StreamCast’. The Court of Appeals for the Ninth Circuit affirmed that decision. However, after I had reserved judgment in this case, the United States Supreme Court unanimously reversed the lower courts and allowed the suit to go to trial. On 27 June 2005, the judgment was delivered: see Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 125 S.Ct 2764 ..."

The Court continued that "It had always been obvious that there were similarities between the Kazaa system and the Grokster and StreamCast systems. There were also differences in the conduct of the systems’ respective operators. Moreover, much of the Australian statutory law had no counterpart in United States law. So there was a question in my mind as to whether the Supreme Court’s decision provided any guidance to the resolution of this case. On 30 June 2005, I invited the parties to comment about that matter. They all did so. Their comments confirmed my impression that the differences, both factual and legal, are such as to render Grokster of little assistance to me."

The following are selected TLJ stories regarding related litigation in the United States.

• story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003.
• stories titled "Senate Committee Holds Hearing on P2P Networks" and "News Analysis: Hatch Hyperbolizes About Destroying Computers on P2P Networks" in TLJ Daily E-Mail Alert No. 683, June 18, 2003.
• story titled "District Court Dismisses Sharman's Sherman Act Counterclaims" in TLJ Daily E-Mail Alert No. 692, July 7, 2003.
• story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in TLJ Daily E-Mail Alert No. 963, August 20, 2003.
• story titled "Petitioners, Solicitor General, & Amici Urge Supreme Court to Reverse in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,063, January 26, 2005.
• story titled "Supreme Court Hears Oral Argument in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,106, March 30, 2005.
• stories titled "Supreme Court Rules in MGM v. Grokster" and "Reaction to the Supreme Court's Opinion in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

This case is Universal Music Australia Pty Ltd, et al.  v Sharman License Holdings Ltd., et al., Federal Court of Australia, No. [2005] FCA 1242, Judge Murray Wilcox presiding.

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The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 10:30 AM for morning business. At 12:00 NOON it will vote on a resolution honoring William Rehnquist. It will recess for funeral ceremonies.

9:00 AM. Day two of a two day conference hosted by the New America Foundation titled "Terrorism, Security and America's Purpose: Towards a More Comprehensive Strategy". The speakers will include Rep. Jim Saxton (R-NJ) and Juan Zarate (Deputy National Security Advisor for Combating Terrorism). See, notice and agenda. Location: Capital Hilton Hotel, 1001 16th Street, NW.

POSTPONED TO SEPTEMBER 12. 9:30 AM. The Senate Judiciary Committee may continue its hearings on the nomination of Judge John Roberts to be Chief Justice of the United States. See, notice. Location: Room 216, Hart Building.

CANCELLED. 10:00 AM. The House Judiciary Committee will meet to mark up two bills, one of which is HR __, a bill to impose additional fees with respect to immigration services for intracompany transferees. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in NCube v. Seachange International, No. 03-1341. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Understanding the Impact of Merck v. Integra". The speaker will be Joseph Contrera (Jacobson Holman). See, the Supreme Court's June 16, 2005 opinion [17 pages in PDF], and story titled "Supreme Court Rules on Research Exemption to Patent Infringement" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005. The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

The National Music Publishers' Association (NMPA), the National Academy of Recording Arts and Sciences (NARAS) and over other music industry organizations will host Recording Arts Day on Capitol Hill. For more information, contact 202 662-1285 or aprilc at grammy dot com.

Deadline to submit reply comments to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding preregistration of unpublished works provision under the Artists' Rights and Theft Prevention Act (ART Act). See, notice in the Federal Register, July 22, 2005, Vol. 70, No. 140, at Pages 42286 - 42292. See also, story titled "Copyright Office Commences Rulemaking on Preregistration of Unpublished Works" in TLJ Daily E-Mail Alert No. 1,181, July 25, 2005.

EXTENDED FROM AUGUST 8. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding low power FM rules. The FCC adopted its order and NPRM on March 16, 2005, and released it on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227. See also, FCC notice [PDF] extending the deadlines.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

8:00 AM - 4:30 PM. Day one of a two day public workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Privacy and Technology: Government Use of Commercial Data for Homeland Security". See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45408 - 45409. Location: auditorium at the DHS offices at the GSA Regional Headquarters Building, 7th and D Streets, SW.

POSTPONED. 9:30 AM. The Senate Judiciary Committee may continue its hearings on the nomination of Judge John Roberts to be Chief Justice of the United States. See, notice. Location: Room 216, Hart Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Immigration, Border Security, and Claims will hold a partially closed hearing titled "Sources and Methods of Foreign Nationals Engaged in Economic and Military Espionage". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:30 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet. See, notice in the Federal Register, August 15, 2005, Vol. 70, No. 156, Page 47875. Location: boardroom, National Academy of Sciences, 2100 C St., NW.

11:00 AM. The House Commerce Committee's (HCC) Subcommittee on Environment and Hazardous Materials will hold a hearing titled "Electronic Waste: An Examination of Current Activity, Implications for Environmental Stewardship, and the Proper Federal Role". The hearing will be webcast by the HCC. See, notice. Location: Room 2322, Rayburn Building.

1:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "Review of U.S. Patent and Trademark Office operations, including analysis of Government Accountability Office, Inspector General, and National Academy of Public Administration Reports". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 1 (Terrestrial and Space Science Services) will meet. See, notice [PDF]. Location: FCC, 445 12th Street, SW, 6th Floor South Conference Room (6-B516).

2:30 PM. The Senate Foreign Relations Committee will hold a hearing on several pending nominations, including those of Robert Mosbacher (to be President of the Overseas Private Investment Corporation), Robert Holland (to be U.S. Executive Director of the International Bank for Reconstruction and Development), and Jan Boyer (to be U.S. Alternate Executive Director of the Inter-American Development Bank). See, notice. Location: Room 419, Dirksen Building.

Deadline for the Federal Communications Commission (FCC) to submit a report to the Congress on competition in the multichannel video programming distribution market. This is MB Docket No. 05-28.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Advisory Group. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

Deadline to submit comments to the Interim Chief Copyright Royalty Judge, on behalf of the Copyright Royalty Board, regarding the existence of controversies to to the distribution of the 2001, 2002 and 2003 satellite royalty funds. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Page 46193 - 46194.

8:30 AM - 12:30 PM. Day two of a two day public workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Privacy and Technology: Government Use of Commercial Data for Homeland Security". See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45408 - 45409. Location: auditorium at the DHS offices at the GSA Regional Headquarters Building, 7th and D Streets, SW.

POSTPONED. 9:30 AM. The Senate Judiciary Committee may continue its hearings on the nomination of Judge John Roberts to be Chief Justice of the United States. See, notice. Location: Room 216, Hart Building.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, notice [PDF] Location: Leventhal Senter & Lerman, 2000 K Street, NW, 7th Floor Conference Room.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of second further proposed rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, original notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687. See also, notice of extension of deadlines, in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38848 - 38849.

Day one of a three day conference hosted by the Future of Music Coalition (FMC) titled "Future of Music Policy Summit". See, conference web site. Location: Lisner Auditorium, George Washington University, 730 21st St., NW.

The Senate Judiciary Committee may begin its hearings on the nomination of Judge John Roberts to be Chief Justice of the United States.

9:00 - 10:15 AM. The Chamber of Commerce and the Business Software Alliance (BSA) will host an event titled "Intellectual Property Business Forum". The speakers will include Carlos Gutierrez, the Secretary of Commerce. See, notice. The price to attend range from free to $95. Location: undisclosed.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Cable and Broadband Rules for an Evolving Landscape: IPTV, Municipal Competition, and Local Video Regulation". No RSVP requested. For more information, contact Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874 or Jason Friedrich at jason dot friedrich at dbr dot com or 202-354-1340. Location: Cole Raywid & Braverman, 1919 Pennsylvania Ave., NW, second floor.

Day two of a three day conference hosted by the Future of Music Coalition (FMC) titled "Future of Music Policy Summit". See, conference web site. Location: Lisner Auditorium, George Washington University, 730 21st St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its order and NPRM regarding the extension of 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The FCC adopted, but did not release, this order and NPRM on May 19, 2005. The FCC released the text [90 pages in PDF] of this order and NPRM on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and story titled "FCC Sets Deadlines for Comments on VOIP NPRM" in TLJ Daily E-Mail Alert No. 1,167, July 5, 2005. See, FCC notice (DA 05-1905) [3 pages in PDF].

EXTENDED TO SEPTEMBER 22. Deadline to submit reply comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also, notice extending deadlines in the Federal Register, August 15, 2005, Vol. 70, No. 156, at Page 47857.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [52 pages in PDF] Special Publication 800-18, Revision 1, titled "Guide for Developing Security Plans for Federal Information Systems".

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, August 23, 2005, Vol. 70, No. 162, at Page 49257. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology will meet. Some of the meeting will be closed to the public. See, notice in the Federal Register, August 23, 2005, Vol. 70, No. 162, at Pages 49256-49257. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will hold a meeting, part of which will be closed to the public. The agenda includes "Update on Encryption controls" and "Update on proposed rule on deemed export related regulatory requirements". See, notice in the Federal Register, September 6, 2005, Vol. 70, No. 171, at Pages 52982 - 52983. Location: Department of Commerce, Room 3884, 14th Street between Constitution and Pennsylvania
Avenues, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in ICO Global Communications v. FCC, No. 04-1248. Judges Randolph, Rogers and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Banking Committee will hold a hearing on "the financial services industry's responsibilities and role in preventing identity theft and protecting sensitive financial information". Location: Room 538, Dirksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Litigate a Copyright Infringement Case". The speaker will be Kenneth Kaufman (Skadden Arps). The price to attend ranges from $80-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day three of a three day conference hosted by the Future of Music Coalition (FMC) titled "Future of Music Policy Summit". At 10:15 AM, Sen. Maria Cantwell (D-WA) is scheduled to speak. See, conference web site. Location: Lisner Auditorium, George Washington University, 730 21st St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rule Making (NPRM), adopted on December 20, 2004, regarding whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability. This item is FCC 04-292 in WT Docket No. 99-87 and RM-9332; See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34726 - 34729.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory Ruling regarding the state Massachusetts' attempt to regulate Wi-Fi hotspots. Continental has installed a Wi-Fi hotspot for internet access and telecommunications at its frequent flyer lounge at Boston Logan Airport (Logan). An issue is whether the demands of the Massachusetts Port Authority for removal of the antenna are prohibited under the FCC's Over the Air Reception Devices (OTARD) rules. This public notice is DA 05-2213 in ET Docket No. 05-247.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, August 23, 2005, Vol. 70, No. 162, at Page 49257. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:30 AM. The Senate Judiciary Committee will hold a hearing titled "Able Danger and Intelligence Information Sharing". This involves data mining. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in SBC Internet Service v. Recording Industry Association of America, No. 04-5325. This is an appeal from the U.S. District Court for the District of Columbia regarding DMCA subpoenas provided for by 17 U.S.C. § 512(h). See, SBC's brief [PDF]. Judges Sentelle, Randolph and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference will meet. See, FCC notice [PDF] and notice in the Federal Register, August 10, 2005, Vol. 70, No. 153, at Pages 46524. Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street, SW.

TIME? The U.S. Trade Representative (USTR) will hold a public hearing on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments to assist it in preparing an annual report to the Congress. See, notice in the Federal Register, August 3, 2005, Vol. 70, No. 148, at Pages 44714 - 44715. Location: Room 1, 1724 F Street, NW.

The Federal Communications Commission (FCC) will hold its Low Power Television Auction, Auction No. 81. See, Public Notice [PDF] numbered DA 05-1624, and dated June 9, 2005.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its green paper describing and evaluating four options to reform restriction practice. See, notice of extension in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Page 45370.