In the red corner is Rod Dorman of California based Hennigan, Bennett & Dorman, co-counsel for Sharman Networks, the makers of the Kazaa peer to peer tools. In the blue corner is Australia's Music Industry Piracy Investigations' manager Michael Speck.
Not surprisingly the two men don't exactly agree with each other on, well, more or less anything. Speck set the tone of the interview fairly quickly by comparing peer to peer companies' legal defences in the Recording Industry Association of America's (RIAA) case against them to those of infamous Colombian cocaine lord Pablo Escobar.
"It's the last hurrah of copyright infringers before the court," he said. "And it can be likened to the Pablo Escobar defence -- 'I make available every aspect of the activity, I make a handsome profit from it but my fingerprints aren't on it' -- I don't think it's an approach that will be ultimately successful in the courts."
Continuing with the guns and hard crime analogy, Speck moved on to comparing Kazaa's role on the Internet to that of a gun dealer in an armed robbery -- as far as he's concerned peer to peer software is about as legitimate as a sawn-off. "A gun has a legitimate use until it's used for a bank robbery," he said.
Kazaa's argument is that because it never actually swapped copyrighted files it hasn't done anything wrong. "There is no allegation that Sharman is a direct [copyright] infringer," Dorman told ZDNet Australia from California by phone. "The argument has been that Sharman is guilty of contributory and vicarious infringement."
"Contributory infringement is if you knowingly assist someone in committing an act of deliberate infringement... vicarious infringement is knowingly allowing someone to it when you have the ability to stop it," he continued.
Speck argues that defence shouldn't apply because Kazaa is simply a tool that is first and foremost used to illegally copy works. "Legitimate use is entirely incidental to the actual use, and blind Freddy would know that," he said.
However Dorman says that from the very beginning Kazaa was set up as a means of distributing licensed content. "From the time that Sharman was created the intention was to [create] the largest means of distributing digitally rights licensed material on the Internet."
Anyway, he says, a decision made in April this year by a U.S. Judge Stephen Wilson basically gives technology companies cart-blanche to do whatever the hell they want, as long as they don't actually trade in copyrighted materials. "There is no statute that talks about secondary liability," he said. "You cannot be guilty of contributory infringement."
It's impossible to stop people trading copyrighted works by filtering content shared over peer to peer networks, Dorman says. He points out that big-time copyright holder Time Warner has a whole raft of its technologies that can be used to "steal" copyrighted material -- like AOL instant messaging and even e-mail. Dorman says the whole thing is about protecting market share and the means of distribution.
"They are trying to criminalise p2p because they want to control the means of distribution they had in the bricks and mortar world. What ended up happening was you had the large five companies in the music industry controlling 85 percent of that market," Dorman said. "So when they decide to put out CDs and distribute CDs they control effectively the distribution of the product. That's why it costs US$20 a CD in the U.S."
Speck holds a different view -- he says AOL's technologies were set up for "legitimate" purposes and Kazaa is clearly a tool which was designed for the purpose of stealing copyrighted works.
"It's an entirely inappropriate comparison. AOL and the like are legitimate systems in the first place are legitimate systems that are misused," he said. "[and] we would seriously dispute the notion that they (p2p companies) can't control traffic."
When asked if he was questioning the legitimacy of Sharman's core business, Speck only had this to say: "They're gaining great profit from trading in somebody else's property and in the real world there's a word for that."
However Dorman says the music industry's got it all wrong -- Kazaa has very little to do with copyright infringement, he explains. His logic runs along the same sorts of lines as that of gun zealots -- you know, guns don't kill people, people kill people. "You had the head of the RIAA saying falsely that Sharman promotes infringing conduct. That's a false fact. You're not permitted to do that if you follow the rules of the end user license agreement," he said.
It's all pretty black and white if you ask Speck -- peer to peer software companies can't get revenues up without resorting to thievery. "Their main concern is that the owners of copyright aren't embracing their model... the model is only successful as a commercial enterprise if you take the music from the owners without their permission and without paying them for it," he explained.
Contrary to Sharman's very public belief that if the appeal goes the RIAA's way technological innovation will be stunted, Speck says stamping out "illegitimate" online music trading will give birth to a new market. "A decision against these people will provide tremendous impetus for developers and establishers of legitimate models," he said.
That's not the way Dorman sees it. If the RIAA's appeal against Judge Wilson's ruling gets up the repercussions could be dire, he thinks. The legal history goes as far back as a ruling in 1984 relating to Sony Betamax video recorders, where the court found Sony could not be held liable for the misuse of its product. "I think the Sony Betamax decision provides a clear bright-line rule that tells tech developers and users not to stop -- you should keep innovating even if some people misuse it... we as a society are not going to penalise you for it."
This whole thing is going to drive the file shares into a new systems built around encription. Vary soon P2P is going to be secure. You will make a request for a file and no one will know where is came from. Its over. All the music is out there. Law suite won't stop it. Kid out her are forming protest group. The music industry better brace themselve for the biggest down turn in sales ever. All the kids are playing tune from the 60's the hell with the junk. This is all about control. It's over they lost it.