Kazaa goes the way of Grokster' Authorization of Copyright Infringement via Peer-to-Peer Networks in Australia

Abstract

In Universal Music Australia v Sharman License Holdings (2005) 65 IPR 289 an Australian Federal Court suggested for the first time that it is acceptable to prohibit the continued distribution of a product on the grounds that after its sale it is capable of being used by its purchaser to infringe copyright, even though it may also have non-infringing uses. The decision raises important questions about the scope and meaning of the concept of 'authorization' under Australian law. The most important question is whether or not some degree or control is necessary to support a finding of authorization. This article comprehensively explains the decision and argues that the Australian law could usefully draw upon some aspects of the United States approach to answer the questions raised.

Keywords: P2P, peer-to-peer, file sharing, file-sharing, kazaa, sharman, grokster, morpheus, napster, aimster, copyright, secondary infringement, secondary liability, vicarious infringement, vicarious liability, contributory infringement, contributory liability, sony, betamax

JEL Classification: K00, O34