Sharman Networks has applied for leave to appeal a Federal Court ruling declining to set aside a civil search order used by music investigators to raid Sharman and other parties' premises seeking evidence of illegal copyright-infringing activity.
The general manager of the music industry's piracy investigations unit, Michael Speck, confirmed to ZDNet Australia this evening he had been informed lawyers for Sharman Networks would apply for leave to appeal the Federal Court ruling before its deadline to do so expired tomorrow. A spokesperson for Sharman -- owner of the peer-to-peer software Kazaa -- subsequently confirmed the company would be appealing the decision. The Federal Court will set a date to hear the application for leave to appeal and, should that be granted, the appeal itself.
Federal Court justice Murray Wilcox ruled on 4 March against applications by Sharman Networks and Brilliant Digital Entertainment (BDE) -- the parent of Sharman business partner Altnet -- to have the so-called "Anton Piller" civil search order obtained by several Australian subsidiaries of multinational music companies such as Universal, Sony and Warner, set aside.
Wilcox said, however, that the parties should negotiate a regime of access for material seized during the raids.
In a statement issued later Thursday evening, Sharman said the "numerous" grounds of appeal included the judge's:
- failure to consider the lack of evidence of possession by Sharman of incriminating evidence;
- failure to consider the fact there was no real possibility of destruction of evidence;
- failure to consider the relevance of proceedings involving Sharman in the US and the Netherlands and in particular the judgments of both courts, which found that the owners and operators of Kazaa and other peer-to-peer applications had no means of control over the activities of users.
Sharman also criticised the judge's dismissal as "irrelevant" Sharman's conduct in the US proceedings on the basis that the material sought to be preserved by the order was "transitory".
"It is our belief that this is an improper exercise of the jurisdiction of the court to have granted an Anton Piller order in this case," the Sharman statement quoted an unnamed legal representative as saying.
Nikki Hemming, Sharman's chief executive officer, said "we remain resolute in this case -- the plaintiffs are not raising any new issues here.
"This appeal is about standing up for what we believe in -- the right for peer-to-peer technology to exist as a legitimate model for digital distribution".
The comment came as it was revealed by music industry investigators the three universities raided on the same day as Sharman, BDE, executives from those companies and Internet service providers had written to Wilcox during the case asking to derive the same benefits as Sharman and BDE should the judge decide to set aside the civil search orders. The request came from Monash University, the University of Queensland and the University of NSW.
Telstra meets ACCC deadline
The Australian Competition and Consumer Commission today confirmed receipt of a submission from Telstra before a 4pm AEST deadline over the carrier's controversial broadband pricing initiatives.
An ACCC spokesperson told ZDNet Australia just after the deadline the competition watchdog would determine its next step after reading the document.
The ACCC has issued Telstra a consultation notice over the initiatives, which rival Internet service providers claimed threatened their viability. Should Telstra's explanation be unsatisfactory the regulator may decide to take the next step and issue a competition notice, which could lead to Federal Court Action and fines of more than AU$10 million. A Telstra spokesperson declined to comment on the issue.