Lawyers representing record labels and those acting for peer-to-peer
companies last Friday argued in the Federal Court of Australia in Sydney whether a
controversial order used by the music industry to obtain information about
file-sharing companies should be overturned.
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 that
they would challenge the orders on the grounds that not all appropriate evidence
was presented during the discovery phase of the orders.
Sharman Networks, the parent company of the popular Kazaa software, is
arguing that the case the Australian record labels bought is substantially the
same case currently being fought in the United States and should therefore be
set aside or deferred until the U.S. case is finished. Lawyers for the record
labels argued that the two cases were distinct and independent. Early in the
proceedings last Friday, Justice Wilcox questioned whether this case was a duplicate
of the one in the United States and indicated that it would be deferred, if it
"If it's not a duplication, the
fact that Sharman has to fight two unrelated battles on two fronts is
unfortunate," said Justice Wilcox, who indicated that 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 in the U.S. case. They added that the
evidence was "of its nature, likely to be ephemeral."
"The U.S. 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 MIPI sought wasn't sought by the U.S. legal team under
He said that in the United States, 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, which was also raided, 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 Brilliant
Digital that 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