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December 19, 2003

Dutch courage. Hurrah for KaZaA, the file-swapping program that has enabled millions of people worldwide to exchange music files illegally (and, on occasion, legally) over the internet.

In the first case of its kind in Europe, the Dutch Supreme Court has ruled that KaZaA is not an illegal program despite appeals from the music industry, which wants it banned.

The music industry first took the KaZaA company to court in Amsterdam in 2001 in an attempt to stop its programmers, dutchmen Niklas Zennstrom and Janus Friis, from distributing their program.

KaZaA is one of a rash of "peer-to-peer" or "p2p" programs that allows users to copy files directly from each other. Unlike Napster, the file-swapping program that was shut down in July 2000 on the orders of a San Francisco judge, KaZaA does not operate through a central hub, but allows individual users to connect directly to each other.

The distinction is crucial, since it is harder to pin the blame on KaZaA's programmers when their product is used for nefarious purposes.

The music industry, represented here by the Buma/Stemra organisation, claimed that Mr Zennstrom and Mr Friis should be held responsible for any copyright infringement their customers perpetrated. Without KaZaA, Buma/Stemra argued, pirates would be unable to carry on their peg-legged trade.

Luckily for the dutchmen, and p2p users the world over, the music industry failed to convince the judges. The supreme court today echoed the decision of the Amsterdam appeal court in 2002 by ruling that KaZaA is no more responsible for internet piracy than Betamax was for video piracy, or Xerox is for overexuberant photocopying of copyrighted documents.

The decision has profound implications for copyright law in the European Union because it was set in the context of (if not directly influenced by) EU directives (2001/29/EC and 2000/31/EC for all you hardcore EU law afficionados) that will soon be law in all EU countries.

The war is not over for p2p companies, but a decisive battle has been won. As Mr Zennstrom and Mr Friis put it: "It is a historic victory for the evolution of the Internet and for consumers."

I still wish they hadn't used those silly capital letters in the middle of their program's name, though.

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