Sharman Networks is considering appealing a decision by an Australian
federal court to admit evidence obtained under a search order in the music
industry's case against it over file-sharing software Kazaa.
In a statement Thursday issued after the court proceedings, lawyers for
Sharman Networks claimed the court decision--in which Justice Murray Wilcox
ruled that the civil search orders obtained by the music industry's local
subsidiaries should not be set aside--did not
represent a "clear win for either side."
Sharman is being represented in the case by a team from Phillips Fox,
headed by QC Francis Douglas.
The lawyers said the material seized would remain in the
hands of independent lawyers and access to that material negotiated between the
"It effectively means that material seized will not be handed over to the
record industry plaintiffs, rather, both parties will discuss a regime of
access," they stated.
"In reality, this is a way of converting the 'shock and awe' tactics
employed by the plaintiffs by using the Anton Piller order into a more formal,
appropriate legal process akin to discovery," they added.
However, the lawyers said they were concerned about the precedent set by
the decision. They described the Anton Piller order, a civil equivalent of a
search warrant, as "draconian."
"It opens the door for any person or business in Australia involved in
the development of new technology to have their homes and offices raided by
large multinationals, and property taken, without due process," they said.
Nikki Hemming, chief executive officer
of Sharman Networks, said the company had complied with legal proceedings up
until the Anton Piller order and had full intentions of complying in the future.
"We remain outraged at the heavy-handed tactics that have been used by
the record industry to obtain information that we would have provided through
the normal, appropriate court process," Hemming said. "In his ruling, Justice
Wilcox acknowledged that Sharman has complied with legal proceedings in the past
and that the company would conduct itself in the same manner in Australia."
She said the multinational record companies were just "forum shopping"
for an appropriate jurisdiction as they "continue to lose their cases overseas,"
adding that the record companies should be taking advantage of the new
opportunities provided by software such as Kazaa.
"It's time for the record labels to take their business back from their
lawyers and capitalize on this new opportunity," Hemming said.
However, the general manager of the music industry's piracy
investigations unit, Michael Speck, said "the industry is committed to the
growth of legal online music providers and stopping Kazaa's illegal activities
is a necessary step in that process."
The case is scheduled to continue in court on March 23.
Abby Dinham of ZDNet
Australia reported from Sydney.