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

Australian Intellectual Property Journal, pp. 53-76, 2006

Monash University Faculty of Law Legal Studies Research Paper No. 2006/14

25 Pages Posted: 9 Nov 2007 Last revised: 9 Oct 2019

See all articles by Rebecca Giblin

Rebecca Giblin

University of Melbourne - Law School

Mark Davison

Monash University - Faculty of Law

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

Suggested Citation

Giblin, Rebecca and Davison, Mark, Kazaa goes the way of Grokster' Authorization of Copyright Infringement via Peer-to-Peer Networks in Australia. Australian Intellectual Property Journal, pp. 53-76, 2006; Monash University Faculty of Law Legal Studies Research Paper No. 2006/14. Available at SSRN: https://ssrn.com/abstract=1028653

Rebecca Giblin (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Mark Davison

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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