Two weeks ago Music Industry Piracy Investigations (MIPI) obtained Anton Pillar orders encompassing 12 premises across Australia which allowed it to search for and seize material on the premises it believed may contain evidence of copyright infringement. The following week lawyers for Sharman Networks told Justice Murray Wilcox they would challenge the orders on the grounds that not all appropriate evidence was presented during the discovery phase of the orders.
Sharman Networks is arguing that the case bought by the Australian record labels is substantially the same case as is being fought in the United States, and should therefore be set aside or deferred until the US case is finished. Unsurprisingly, lawyers for the record labels argued the two cases were distinct and independent. Early in the proceedings today Justice Wilcox questioned whether this case was a duplicate of the one in the US, and indicated it would be deferred if it was.
"If it's not a duplication the fact that Sharman has to fight two unrelated battles on two fronts is unfortunate," said Justice Wilcox, but indicated the case would continue.
Lawyers for the music industry argued that some of the evidence they collected under the Anton Pillar orders took place while "the system was in action". This meant that they wanted to ascertain the technical detail of the processes involved in file-sharing via the Kazaa network. This level of detail, the lawyers said, was not being collected during the US case. They added that the evidence was "of its nature, likely to be ephemeral".
"The US copyright law is more concerned with structural aspects of the technology...rather than the operation of the software [as the Australian law is]," the lawyer representing the record labels told the judge as a possible reason why the evidence sought by MIPI wasn't sought by the US legal team under subpoena.
He said that in the US a person had to either personally transmit a copyright-infringing MP3 file or substantially assist that transmission, while in Australia, ancillary acts constitute infringement.
The lawyer representing Kevin Burmeister, the owner of Brilliant Digital Entertainment (BDE), which was also raided, also brought up some issues for the court concerning the Anton Pillar order. He pointed out that much of the evidence seized during the raid was from Altnet, a subsidiary of BDE, but which wasn't itself mentioned in the Anton Pillar order as a target.
The lawyer also raised the issue that the Anton Pillar order had the effect of seizing the source code of the Altnet software. In the United States the record labels and Altnet are wrangling over the conditions under which the code will be produced, and Altnet is now concerned that it may have lost control of that process.