Kazaa Wins Procedural Victory in Aussie Court

The Australian recording industry’s bid to eyeball material gathered in a series of raids at the sites of alleged music pirates — including Sharman Networks, maker of the popular online file-sharing program Kazaa, and Sharman partners Altnet and Brilliant Digital Entertainment — was deflated last week in a proceeding in a New South Wales federal court.

During the proceeding, Justice Murray Wilcox denied lawyers for the recording industry direct access to any of the materials seized in the so-called Anton Piller raids earlier this year.

“The discovery process that would have resulted from the Anton Piller raid has been replaced with a regular process of discovery,” Kevin Bermeister, CEO of Altnet and Brilliant, which is based in Woodland Hills, California, told TechNewsWorld.

Proper Discovery

“This kind of discovery is different from a raid where your documents are confiscated and become visible to the other side without a proper discovery process — a process that is unanimous, private and privileged in the way that discovery would normally be,” Bermeister explained.

Under that process, lawyers for the recording industry must provide written requests to Sharman and the other defendants in the case for particular items or categories of items. Those requests can be challenged by Sharman if it thinks they go beyond the scope of discovery parameters for the case.

“They only get to see what we present,” Bermeister said. “And they’re not present during the time when we sort through the material that they raided.”

Gag Order

Justice Wilcox will evaluate the progress of the case at its next hearing, scheduled for July 1st. Expectations are that the case will be tried before the end of this year. “That’s a realistic view of things,” Bermeister opined.

When contacted for comment on the case, both Sharman and Music Industry Piracy Investigations (MIPA), which conducted the raids for the Australian Recording Industry Association, said they had been instructed by Justice Wilcox not to comment on the case to the media.

“Unfortunately, in the latest ruling the judge requested that neither the recording industries nor Sharman Networks provide statements to the press,” Sharman spokesperson Julie Fenwick told TechNewsWorld in an e-mail message.

No Curbside Comments

Indeed, during the proceeding last week, Justice Wilcox reiterated his displeasure with parties in the case talking to the media about it.

In a transcript of the proceeding obtained by TechNewsWorld, the justice told attorneys for the recording industry:

“[I]t is highly undesirable that anybody involved in a case on your side, and that includes not only solicitors involved, but witnesses, and [MIPA General Manager] Mr. Speck, who is a major witness in your case, to be giving kerbside [sic] descriptions about what is going on in court, inevitably tends to complicates [sic] things.”

This Isn’t America

“Once this sort of thing happens, you get side issues as to what he [Speck] said was correct or not correct,” Justice Wilcox continued. “Now, it is not too much to ask that a major witness will just not make public statements about a case,” he said.

“It may be that in America that is regarded as being part of being a witness, but it is rather foreign to our culture,” the justice added.

He sternly advised recording industry counsel, “I appreciate that you can’t control a witness in the sense that you can’t gag him, and I want to say with as much emphasis as I can, and I hope the message will be understood, that people who are associated with your side of the case, and the same goes for your opponents, should desist from public statements, whether to the media or Web site.”

Drop from Number One

Asked if the proceedings in Australia had contributed to Kazaa’s falling from the top spot of Download.com’s weekly shareware listings, Bermeister said no. “We install components with Kazaa, and our numbers are not down in any way whatsoever for the past six months,” he said.

“These things have an effect on the way people use Kazaa,” he added. “We’ve seen some changing user patterns and user habits, but for the most part, they’re not very significant. For us, it’s business as usual.”

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