Aussie P2P

Reading Kim Weatherall’s analysis of the judgement against Kazaa in Australia (it’s liable for authorising copyright infringement, with the parties directed to implement a filtering protocol) reminds me of the important differences between the American legal system and Australian and other common law countries.

Most important, the common law tradition tends to be far more closely attuned to the nuances of precedent, and to fact-based distinctions between holding and dicta, than the modern American tradition is. We certainly teach American lawyers to discern those distinctions, but it’s rare to see a dispute analyzed exclusively on the basis of distinctions drawn from cases. We’ve nearly abandoned the notion that this sort of analysis is the only thing that judges should pursue, and that extraneous judicial statements should be disregarded as “obiter.” To an American lawyer, that word itself is a quaint anachronism; note what appears to be Kim’s un-selfconscious usage. On the other side of the divide, the American lawyer and judge tends to be far more comfortable deploying policy arguments for and against a given result, even at the trial level, than their common law counterparts. Judges routinely cloak their analysis of precedent in policy justifications. And all of this holds true, I think, even in a context like copyright, which is statutory in Australia just as it is in the United States.

In addition, these differences in judicial humility extend, ordinarily, to the two systems’ relative comfort levels in “supervising” ongoing remedies. Kim points out “the traditional reluctance of the courts to grant injunctive relief that will involve forcing parties into an ongoing relationship, which will require ‘ongoing supervision’ by the court of the order.” In the U.S., despite formal statements in the law to similar effect, courts supervise all kinds of things — from desegregation orders to reconstruction of negligently-built condominium developments to the behavior of monopolistic software producers. Judicial supervision of technological design is relatively new here, but that’s largely because cases alleging that designs inflicted economic harm are also relatively new, and relatively rare.

So when Kim concludes

But most immediately striking to me is just how brave Wilcox is. In splitting the baby, and trying to get into technological design, I fear that the judge has let himself in for a helluva fight. And it’s not like he didn’t know that: he saw the litigation as it went on. I fear the dramas will continue as parties fight over orders. We are back in Napster territory again.

I can’t doubt her analysis of Australian law. But I do wonder whether the comparison is apt. Her characterization of the Australian judgement make it sound as if the judge is embarking on a new venture, not just in IP but in Australian law more generally. Judge Patel’s appointment of A.J. Nichols as a technical expert was widely criticized (by Napster, and by fellow technology firms) because it appeared to put “innovation” and technical design in the hands of a third party. But appointing technical experts and special masters to help with ongoing supervision and implementation of remedies is something that American courts do all the time. (Nowhere is that phenomenon better established, I suspect, than in the courts of San Francisco, San Mateo, and Santa Clara Counties, where I used to practice — that is, in the Silicon Valley and its environs.) So while the Kazaa judgement may represent an extraordinary procedural step for an Australian court, from an the point of view of the American judicial system I think that the right (objective) response is that the judge’s ruling in this regard is No-Big-Deal.