Not so brave? More on Kazaa

[UPDATE/CLARIFICATION: As per the comment to this post: let's be clear on this - I am not meaning to suggest, by the text below, that Wilcox J intended to create work for the court on the Kazaa injunction. As I noted, the issue is in part moot, and as David Starkoff has pointed out, one interpretation of the intention behind the order - and one which I agree with David is a highly likely - is that it is supposed to provide clarity and avoid disputes about what Kazaa was meant to do. My view is that the order will fail to achieve this effect, but that does not impugn the intention behind it. I agree with my commenter that the last thing that Wilcox J could be called is 'cowardly' - the willingness to put a provisional style of order 'out there' is, quite arguably, an admirable thing since it opens up the issue for discussion.]

One canny reader points out that Wilcox J is due to retire soon. Hence my comment that Justice Wilcox is brave by letting himself in for future fights over the scope of any injunction is a little misplaced - perhaps we should see it as letting the court in for further disputes - not himself...

In any event, it's all a little academic, since Kazaa have announced that they will be appealing.

In other Kazaa news, The Tele is reporting that:

The music industry will push for more than $1 billion in damages after its landmark court victory over internet music pirates Kazaa.

As I said earlier, as to the amount of any damages, who knows what an Australian court will order? But here are some key points to remember:

• Australia does not have a system of statutory damages at the moment. So there can be no argument that the copyright owners can elect to receive $x per infringement and just measure hte number of infringements. Here, we differ from the US, where the copyright owner may elect an award of statutory damages - between $750 and $30,000 per infringement) as the court considers just;
• Australia does however have a system for 'aggravated (actually 'additional') damages' for flagrant infringement (s 115(4)), but there is no particular rule about what must be awarded under that provision;
• The basic measure of damages is proven harm, sometimes measured according to the license fees that would be necessary. Given the difficulties of proving the level of harm caused by file-sharing (as the OECD has noted, the data is very inconclusive on this), it is not at all clear what is going to happen on this issue.

Mind you, of course, Kazaa did have a lot of users...