Followup to the Verizon Decision

Dutch Court Throws Out Attempt to Control Kazaa

by Marcel Michelson and Bernhard Warner

AMSTERDAM/LONDON (Reuters) – The Dutch supreme court on Friday threw out an attempt by a music copyright agency to put controls on popular Internet file-swapping software system Kazaa, a ruling the music industry attacked as flawed.

The decision is a fresh blow to the media industry, which has fought to shut down file-sharing networks they say have created a massive black-market trade in free music, films and video games on the Internet.

“The victory by Kazaa creates an important precedent for the legality of peer-to-peer software, both in the European Union (news – web sites) as elsewhere,” Kazaa’s lawyers Bird & Bird said in a statement.

The decision by the Dutch court, the highest European body yet to rule on file-sharing software, means that the developers of the software cannot be held liable for how individuals use it. It does not address issues over individuals’ use of such networks.

The International Federation of the Phonographic Industry (IFPI), the music trade group representing independent and major music labels including Warner Music, Sony Music, BMG, EMI and Universal Music, criticized the ruling as “one-sided” and vowed to continue its legal crusade elsewhere.

Here We Go Again

This fight has been brewing for a while — it didn’t work for Netscape, but this time around there are others with stakes in this one’s outcome: RealNetworks Accuses Microsoft of Restricting Competition

In a 65-page complaint filed in Federal Court in San Jose, Calif., RealNetworks, a maker of software for playing digital audio and video content, argues that Microsoft has unfairly damaged its business by linking Windows Media Player to the Windows operating system.

“We believe that our business would be substantially larger today if Microsoft were playing by the rules,” said Rob Glaser, chief executive of RealNetworks, which is based in Seattle.

[…] “In a sense this is the next chapter following on the heels of the Netscape issue,” said Andrew I. Gavil, a law professor at Howard University in Washington. “In some ways, it’s become even more significant because of the expansion of the digital content issue.”

See also Wired News’ AP wire feed: RealNetworks: MS Won’t Play Fair; also SFGates’ RealNetworks sues Microsoft on antitrust: Music player firm says software giant hasn’t made good on pact


Nothing like being in meetings and missing all the news!! Donna’s e-mail to me describes it as a holiday present, and I have to admit that it gives me that sort of pleasure. (still reading — updates to come)

  • No. 03-7015; Recording Industry Association of America, Inc. Appellee v. Verizon Internet Services, Inc., Appellant

    On appeal Verizon presents three alternative arguments for reversing the orders of the district court: (1) § 512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others; if the statute does authorize such a subpoena, then the statute is unconstitutional because (2) the district court lacked Article III jurisdiction to issue a subpoena with no underlying "case or controversy" pending before the court; and (3) § 512(h) violates the First Amendment because it lacks sufficient safeguards to protect an internet user’s ability to speak and to associate anonymously. Because we agree with Verizon’s interpretation of the statute, we reverse the orders of the district court enforcing the subpoenas and do not reach either of Verizon’s constitutional arguments. [slip op. 3] [emphasis added]

    Plus, a look at the notion of "strict construction" when legislated rights are concerned — not to mention pointing the finger at the next battleground:

    We are not unsympathetic either to the RIAA’s concern regarding the widespread infringement of its members’ copyrights, or to the need for legal tools to protect those rights. It is not the province of the courts, however, to rewrite the DMCA in order to make it fit a new and unforseen internet architecture, no matter how damaging that development has been to the music industry or threatens being to the motion picture and software industries. The plight of copyright holders must be addressed in the first instance by the Congress; only the "Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology. " See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984). [slip op. 15]

  • CNet News: Court: RIAA lawsuit strategy illegal

  • NYTimes: Record Industry May Not Subpoena Online Providers

  • CopyFight: Verizon Wins Victory for Privacy

  • Ernest Miller: Verizon Wins Against DMCA Subpoenas

  • Slashdot: Appeals Court Rules Against RIAA in DMCA Subpoena Case

  • The EFF’s case archive: RIAA v. Verizon