Sharman fails to have evidence dismissed

Sharman Networks, an Internet software provider, has failed in its application to have evidence against it dismissed, forcing the company to face up to music copyright infringement charges over its P2P music file-sharing software Kazaa.

Federal Court Justice Murray Wilcox ruled that the evidence obtained via an Anton Pillar order (a civil equivalent of a search warrant) was admissible, despite arguments from Sharman lawyers that the materials seized in the raids violated a non-disclosure rule as they contained information relating to an ongoing case in the US

The raids entailed seizure of material from Sharman and its associated companies; the Australian arm, Brilliant Digital Entertainment (BDE) of one of its partners, Altnet; executives from Sharman and other companies as well as other parties, including Telstra. Lawyers representing BDE and its executive Kevin Burmeister had also sought the setting aside of the Anton Pillar orders. However, the Justice's rulings encompassed the BDE application.

Michael Speck, general manager of the music industry's piracy investigations unit, says the court's decision today confirmed all the reasons for getting the order and now, he says, "it's time to get on with the case".

"Today was a total win for copyright owners," said Speck, adding "[Sharman's] actions have taken massive opportunities away from legal music services in this country."

Wilcox said in a statement released following the court proceeding that the purpose of the Anton Pillar order was to prevent the destruction of material that may relate to the case. However, the material that was sought to be preserved was different to the documentation relevant in the US proceedings.

"The important point about this list [of US subpoenaed evidence] is that none of the items includes material (even in electronic form) recording transitory information; that is, data concerning the moment-to-moment transactions undertaken by users of Kazaa," stated Justice Wilcox.

He adds that the Anton Pillar order "does just that", as the order authorised the recovery of data that "must be constantly changing".

"In an ideal world, it would be preferable for parties not to need to resort to Anton Pillar action," said Justice Wilcox, adding, however, that in this case there was little other alternative to "taking a 'snapshot' of the scheme in operation".

Wilcox states that if he were to have to make the decision to approve an Anton Pillar order again in the same circumstances as those of 5 February, 2004, he would take similar action.

"Evidence about dynamic operation is available on relevant computers, from moment to moment, as the transactions occur. If that evidence is to be available at the trial, there must be 'snapshots', perhaps many snapshots, showing the changing data in the system moment to moment," explains Justice Wilcox.

The judge said during court proceedings that it would be desirable for the parties to consult about the material taken on 6 February, 2004, to rectify any incidence of mistakenly confiscated material that may fall outside the authority of Anton Pillar orders.

The principal proceeding of Universal Music Australia and Sharman License Holdings [2004] is scheduled to be held on 23 March, 2004.

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