KPMG expert unwinds Altnet-Kazaa link claim

KPMG forensic director Rodney McKemmish said -- in remarks tackling the music industry's premise that Altnet and Sharman are tightly integrated in facilitating copyright-infringing behaviour -- that a key search function on the Altnet system was restricted to licensed music files (known as so-called 'Gold' files), meaning that locating and searching for unlicensed music files (or so-called 'Blue' files) was restricted to the Kazaa software.

Altnet's so-called TopSearch Dynamic Link Library (DLL) files, which reside on the user's computer, are integral to the search for a list of periodically-updated Gold files.

"The TopSearch DLL is only concerned with the search for Gold Files, and as such it is Kazaa that is solely responsible for locating Blue Files and displaying the search results for both Gold and Blue Files," McKemmish said in his affidavit.

While the Kazaa Media Desktop (KMD) utilises technology provided by Altnet, McKemmish said, the Altnet technology has been designed to be independent of any one peer-to-peer product. Kazaa is also not dependent on Altnet technology to operate as a peer-to-peer application.

"[KMD] is not dependent on the TopSearch DLL to function with respect of versions 2.7.1 and 2.7.2. By removing the TopSearch DLL file from Kazaa, a search can still be performed, with only Blue Files being present in the search results....I do not believe that Kazaa version 2.6.6 is reliant upon the TopSearch DLL to undertake a search for, and download of, any file other than Gold files," McKemmish said.

Expert witnesses for the applicants had previously asserted that TopSearch is a compulsory feature of KMD and that "KMD is designed so that any attempt by a user to remove TopSearch will result in a failure of the KMD with the user being required to reinstall a fresh version of KMD which will necessarily contain the TopSearch."

Altnet, one of the respondents for the case, says it is a peer-to-peer distributor of "legal, licensed secure digital media that originates from content owners" and reaches an estimated 70 million users. Altnet's products integrate with Web sites, applications, and peer to peer networks which allow Internet users to locate, download, trial and purchase digital content. Altnet is a subsidiary of Brilliant Digital Entertainment, another respondent.

Through Altnet's exclusive relationship with Kazaa, other major peer to peer networks, and search engines, Altnet-distributed files are given preferred search listing placement. Users searching for files using specific words see Altnet files listed first, at the top of the results window, as Gold icons indicating they are "legal to download, virus free, and high quality".

A user clicks the Gold icons to download the files. TopSearch keywords can include specific terms such as a title of a song or a name of a band and can also be generic terms. Altnet said that the Gold files are copyright-protected.

In other developments today, a document surfaced detailing Altnet's proposal on filtering child pornography in P2P networks to the Federal Bureau of Investigation. According to the report prepared by Altnet's executive vice president for worldwide operations, each time a user searches for a keyword that is associated with child pornography, Altnet can "insert a contextual message that appears at the top of the search results".

"The FBI can prepare public service announcement videos and pictures. Altnet will turn these into files, give them Gold file icons and associate them with keywords known to be used by those seeking child porn."

In the report, Altnet also acknowledged its largest partner Sharman Networks as the leader in the industry in deploying tools to allow users to "filter out unwanted files".

"It is the first Internet application to offer a 'family filter' which allows parents to set restrictions on what types of files their children may search for. By default, the adult filter is set 'on' when a user installs Kaza," the report said.

Altnet's report showed that an Altnet central server exists as a "fallback" to the peer to peer system.

"While the peer to peer networks is a highly efficient way to distribute files and greatly reduces bandwidth expenses over traditional systems, a central server is still required in order to initially 'seed' files to peers and as a fallback to the peer to peer system. Altnet customers may user their own seeding and fallback server or hire Altnet to perform this function on their behalf."

Before adjourning for the day, Justice Murray Wilcox heard legal argument in relation to a subpoena, issued by the applicants, requiring documents from the former lawyers for the Sharman parties, Phillips Fox. Justice Wilcox subsequently ordered Phillips Fox to produce -- by tomorrow -- all material relating to the infringement of copyright arising from the distribution or operation of the Kazaa software.