Sharman, others plead innocence
At ongoing court proceedings in Sydney, Sharman barrister Tony Meagher stressed there was no clear evidence to prove any guilt. Major music labels in Australia have pointed to the existence of an alleged central server, which allows the P2P company to monitor the sharing of copyright-infringing music files through the Kazaa system.
"If there was such a server, it would be one of the largest concentrations of computing power on the planet and it is inconceivable that the applicants and their expert advisers could have failed to detect its existence and whereabouts, and adduce direct evidence about it.
"The evidence clearly demonstrates that the Sharman respondents do not receive or collect, and do not have the capability to receive or collect, any information on individual users or their downloading and file sharing activities. They have no commercial need to do so and there is not requirement for them to do so," Meagher said.
Today marked closing submissions at the trial which began in November last year.
In a court document, Sharman said the machine that runs the Kazaa Media Desktop (KMD) program only sends three types of information to its Web servers, operated by Akamai. The data includes a user's KMD version number, preferred language settings and Internet Protocol address.
"The evidence does not identify any other information being received by Akamai or the Sharman respondents in relation to users. None of that information is relevant to an act of copyright infringement or even the use of the KMD. No information relating to use is available via the Kazaa Web site because neither the searching nor the downloading functions of the KMD make any use of the Kazaa Web site or any other Web site," Sharman added.
Meagher said that the music industry's suggestion of putting filters on Kazaa to inhibit the exchange of copyright infringing music files is impossible.
One expert witness for Sharman previously testified that the "technical and economic difficulties in implementation, operation and potential for circumvention makes it impossible to implement filtering functionality effectively."
Some of the challenges include differentiating between legal and illegal music files, and obtaining a list of licensed work from a user's computer -- which is a tedious and bandwidth-hungry process.
"There is no evidence of the existence of a non-optional filter -- whether within the KMD or otherwise -- where a third party determines the content to be filtered and imposes that on users," Sharman said.
According to Meagher, filters residing on a PC can be easily removed by the users themselves. They can also block the communication updates of filter terms to their machines.
Sharman also answered allegations that it has control over file types downloaded by users. "The software is content neutral and the Sharman respondents do not and cannot control either the files (whether video, music, text or otherwise) which users might make available by placing them in their My Shared Folder or the content which they search for and choose to download using the software.
"Neither Sharman nor any other respondent has knowledge of precisely what users are searching for, uploading or downloading at any time," it said.
Another party being sued is online digital entertainment distributor Altnet. Its barrister Steven Finch emphasised during his closing submission that the company's TopSearch technology only deals with the search of 'gold files' (licensed music files) and has nothing to do with the search of 'blue files' (unlicensed music files).
"There are two search softwares under KMD; FastTrack and TopSearch. When searching for songs using KMD, FastTrack and TopSearch receives the request then passes it onto the supernodes. The supernodes return to the user's computer with the files. The first five results will be gold files. FastTrack doesn't get the gold files.
"The only relationship between the gold and blue files is their proximity on the computer screen. They don't come from the same place, they are not retrieved by the same programs, and Altnet's technology has no role in [retrieving gold icons]. If it's a blue icon, FastTrack gets it. Altnet technology provides a list of matching gold icons to KMD. At no point do we have anything to do with the copying of blue files," Finch said.
Presiding judge Justice Murray Wilcox is expected to release his judgment in four to six weeks. Yesterday, Sharman CEO Nikki Hemming, Altnet chief executive officer Kevin Bermeister and his wife, Beverly agreed to freeze their personal assets until seven days after judgement is reached.