Record labels win round against file-swapping students

An Australian university will have to hand over its backup tapes, as record labels continue their crackdown on unauthorised music sharing

Sydney University can't hide behind claims that file-swapping data sought by record labels was deleted from its system, an Australian federal judge has ruled.

The decision is a setback to alleged copyright infringers that hope to delay or deflect threatened lawsuits from the recording industry, which has filed a wave of subpoenas against universities and Internet service providers in recent weeks.

Some US schools, including the Massachusetts Institute of Technology and Boston University, have sought to challenge the subpoenas on procedural grounds. While those actions could delay investigators, it is unlikely to derail them.

The order by Justice Brian Tamberlin for now removes one of the most potent shields for accused students. In the United States, for example, rules about data retention by Internet service providers are still in flux, leading some legal experts to suggest that destroying file-swapping data offers a legitimate out for ISPs that are hit with subpoenas.

Sydney University had argued that an earlier court order to turn over the data referred only to specific files and not to the physical media on which the files were stored. School officials claimed that the files had not only been deleted but had been overwritten and thus no longer existed.

But Tamberlin disagreed, saying the school is obligated to hand over the physical tapes on which the data was stored in order to give investigators a chance to recover the data. The court also ordered the school to pick up the costs associated with the recovery.

The university has two back-up cycles: one with 10 backups over a two-week period and one with 12 backups over a 12-week period. The files sought by the music companies had already been overwritten. "This regular overwriting of back-up tapes should come as no surprise to the applicants," the lawyer for Sydney University said.

But the lawyer for the music companies argued there was no distinction made between the back-up files and the storage media used and said the tapes could have been overwritten with the same files. In addition, the record industry's representative argued that it takes several overwriting cycles to completely destroy information.

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