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Code Wars

10 Years of P2P Software Litigation

Rebecca Giblin

With reference to US, UK, Canadian and Australian secondary liability regimes, this insightful book develops a compelling new theory to explain why a decade of ostensibly successful litigation failed to reduce the number, variety or availability of P2P file sharing applications – and highlights ways the law might need to change if it is to have any meaningful effect in future.
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Chapter 6: Goldilocks and the Three Laws: Why Rights Holders Would Never Have Sued a P2P Provider under UK or Canadian Law (and why the Australian law was just right)

Rebecca Giblin


The Grokster litigation described in the previous few chapters was aimed squarely at stamping out FastTrack-based technologies. The original defendants to the Grokster suit included Kazaa BV, the Netherlandsincorporated company that commissioned the technology in the first place, as well as licensees Grokster and StreamCast Networks for good measure. (Gnutella only ever became involved in the litigation because StreamCast Networks switched to it after the litigation had already commenced.) But in the end, that drawn-out saga only involved its two one-time licensees, and not its ultimate owners. That was because, despite having litigation launched against them almost simultaneously in the Netherlands and the US in late 2001, Kazaa’s owners proved unexpectedly difficult to pin down.

The Netherlands litigation started well when the Amsterdam District Court fast ordered Kazaa BV to shut down Kazaa within 14 days – despite its owner’s protestations that its technological architecture made it physically impossible to do so.1 After that, however, nothing went to plan. Kazaa BV responded to the injunction by rapidly transferring key assets to a secretive and complex web of companies incorporated in jurisdictions all over the world, starting with Joltid Ltd, a British Virgin Islands company belonging to one of its directors.2 Then in March 2002 the Amsterdam Court of Appeal overturned the decision to grant the injunction,3 a decision that was eventually upheld by the Dutch Supreme Court.4

Meanwhile, Kazaa BV’s game of corporate musical chairs proved an excellent strategy for complicating and delaying the...

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