Decision one - the movie studios vs iiNet. Justice Cowdroy decides that an ISP cannot be held responsible for its customers illegally downloading copyrighted material. No surprises there.

Decision two - Justice Peter Jacobson rules that Men at Work infringed Larrikin Records' copyright in the work Kookaburra Sits in the Old Gum Tree. Big surprise.

Despite world wide moves to drag ISPs into the campaign against illegal filesharing (see MediaWave Expert Group Comments), these court actions are like prosecuting owners of a tollway for allowing motorists to speed.The iiNet decision is a realistic - the sort of thing you would hope for from the Australian courts.

And then on the same day, in a different court, you get the baffling judgement against Men at Work.

Yes, a smart lawyer, backed up by a stream of expert witnesses (musicologists, audio engineers) could make a simple case that the two riffs in question are analogous. But to move from that to awarding Larrikkin between 40-60% of the revenue derived from Land Down Under flies in the face of reason.

There is an old tradition in jazz called "quoting" - a soloist plays little quotes from any number of jazz standards. This is how the Land Down Under riff should have been viewed - as an affectionate quote, not copyright infringement.
Are record companies now thinking about suing James Morrison for every quote in his trumpet solos?

A couple of quiet words in the ear of Larrikin - "consumer backlash".

Attacking a work of art which is so much part of the national psyche could backfire. I guess the people at Larrikin think they have more to gain out of taking the money and running. A smarter move by Larrikin would be to accept a small royalty on all future sales, that is, if they want to stay in business.

It seems likely that both cases will be appealed, so it's not over yet. But in the meantime...

What this means to you

The battle between IP owners and illegal downloaders has swung in favour of the pirates for the moment. As a content creator, you need to be wary of content deals that offer copyright protection as part of the package. They may lock you into a leaky ghost ship.