One document which stirred some heated objections was the admission of an e-mail sent to executives and employees of Sharman Networks and Altnet regarding the results of an Australian focus group conducted in May 2003 on the use of the Kazaa software.
The e-mail was sent to Sharman chief executive officer Nikki Hemming, Altnet chief executive officer Kevin Bermeister, Sharman technical officer Phil Morle, and Altnet chief technical officer Anthony Rose among others.
The e-mail showed that the focus group sees Kazaa's image as "free music concept" that "would come to an end similar to Napster."
The document said that the focus group perceived Kazaa as having "largest variety of music and number of users".
Very few of the 18 members of the focus group admitted to have noticed the information placed on the Web site regarding the difference between the so-called Gold and Blue icons, even when "know your icons" was flashing on the screen.
Music files with Gold icons are licensed music files distributed mainly by Altnet, also a respondent in the case and a peer to peer distributor of "legal and licensed secure digital media that originates from content owners". Music files with Blue icons, on the other hand, are the unlicensed files present in nodes or supernodes within the FastTrack network.
The document said that only one out of all the members of the focus group downloaded a Gold file while a few "had heard of them but thought they needed to be paid for".
Universal Music Australia lead barrister Tony Bannon pushed for the admission of the document saying that "It is one link in the chain showing [the respondents] are genuinely and specifically aware users are using [Kazaa] as an engine of piracy and they are taking no steps to restrain it. In fact, they are encouraging it."
In the document, the Sharman parties recommended "to educate users about Gold icons" emphasising that these files are "better quality files, rights protected (particularly for local artists) and 80 percent of it [is] free."
The party considered putting a "sample a gold icon link" on the homepage for users to test. The document stated that the Sharman parties think the "largest challenge is to step users up from not paying to paying [for the music files]...however, if educated about the benefits, particularly x percent are free, and the content in this range is desirable, the users will be more likely to download and this download is more likely to become habitual."
Following Justice Murray Wilcox' order the documents being held by Sharman Networks parties' former lawyers from Philips Fox be handed over, the respondents asked for more time to sort out the documents that need to be left confidential as part of the legal professional privilege.
Legal professional privilege is a privilege recognised by the court to protect the confidentiality of communication between solicitor and client.
The respondents agreed to make a list of documents where the legal professional privilege can be waived which will be presented in court tomorrow morning. The documents contain the legal advice that Sharman Networks received from Sydney-based firm Philips Fox regarding copyright infringement.
Justice Wilcox also announced today that closing statements will be held March 22 and 23 in 2005.