The music industry's piracy investigations unit is in danger of losing one of the legal tools it relies on to gather evidence of copyright infringement, as Telstra joined Sharman Networks in attempting to have the Anton Pillar orders used in raids on company premises and individuals on Friday overturned.
Telstra joined an application by Sharman Networks yesterday to have the Anton Pillar orders thrown out, arguing that Music Industry Piracy Investigations (MIPI) could achieve the same outcome with a subpoena or pre-trial discovery.
"We argued against a particular legal tool used by the music industry to get the information they wanted," Andrew Maiden, group manager of Public Policy and International Regulatory at Telstra told ZDNet Australia . He said Anton Pillar orders don't give Telstra time to prepare, increases the cost of compliance and dilutes the legal rights of the telecommunications heavyweight's Internet service provision arm.
MIPI also used an Anton Pillar orders in a raid against Comcen, the directors of which have been included in litigation. Telstra are claiming that because they are not a party to the litigation they had no reason to destroy evidence, and an Anton Pillar order was therefore unnecessary.
If Telstra and Sharman are successful in convincing the courts that Anton Pillar orders should not be issued in these circumstances, MIPI stands to lose a tool it relies on to gather evidence. "We'll abide by the decision of any court," Michael Speck, managing director of MIPI told ZDNet Australia . However, he reiterated that the order was "court-sanctioned and court-monitored", and that MIPI was comfortable with the action it took on Friday and confident of the outcome.
"We're resisting this on a matter of principle," said Maiden. "Because in the future as more information is stored electronically Telstra is going to be asked more often to provide electronic forms of evidence. We don't want a precedent that allows evidence to be collected using an Anton Pillar order with the costs and obligations that come with that, rather than by subpoena or pre-trial discovery."
"It's really hard to cooperate when you get a knock on the door and people rush past you to seize evidence," said Maiden.
Speck insisted that an Anton Pillar order was necessary in order to gain all the information MIPI thought was available and relevant to the case.
"Telstra appear to be saying that the law in Australia as it stands is inappropriate to it and should be changed," said Speck. "This looks more like an attempt to protect its Internet business over the need to protect its music business."
"I think it will be a concern to artists throughout the world that when it comes to the pinch this telco will throw its weight behind its online business rather than music," said Speck.
Telstra has been concerned about being perceived this way, especially after recently launching an online music store. "We've conducted diplomacy with the music industry over the last few days so they understand we didn't object to the principle, just tactics," said Maiden, adding that if the Anton Pillar order is overturned and MIPI returns to gather the evidence using another method Telstra would cooperate fully.