February 20, 2004 8:56 AM PST

Music industry's search orders on trial

Lawyers representing record labels and those acting for peer-to-peer companies on 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 Piller 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 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 is.


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"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 Piller 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 subpoena.

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 Piller 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 Piller order as a target.

The lawyer also raised the issue that the Anton Piller 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.

James Pearce of ZDNet Australia reported from Sydney.

 

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