Sharman's raided evidence ruled admissible

[Ken]

By Abby Dinham

Special to CNET News.com

Sharman Networks has failed in its efforts to have evidence in an Australian case against it dismissed, forcing the company to face up to the music copyright infringement charges over its peer-to-peer file-sharing software, Kazaa.

Australian Federal Court Justice Murray Wilcox ruled on Thursday that the evidence obtained via an Anton Pillar order, a civil equivalent of a search warrant, is admissible, despite arguments from Sharman lawyers that the materials seized in raids violated a nondisclosure rule, as they contained information related to an ongoing case in the United States.

The raids entailed the seizure of material from offices of Sharman and its associated companies; the Australian arm, Brilliant Digital Entertainment (BDE), of one of its partners, Altnet; executives of Sharman and other companies; and other parties, including Telstra. Lawyers representing BDE and executive Kevin Burmeister had also sought setting aside the Anton Pillar orders. However, the judge's rulings encompassed the BDE application.

Michael Speck, general manager of the music industry's piracy investigations unit, says the court's decision Thursday confirmed all the reasons for getting the order now. "It's time to get on with the case," he said.

"Today was a total win for copyright owners," said Speck, adding that "(Sharman's) actions have taken massive opportunities away from legal music services in this country."

Talking snapshots

Wilcox said in a statement released following the court proceeding that the purpose of the Anton Pillar order was to prevent the destruction of material that may relate to the case. However, the material sought for preservation was different than the documentation relevant in the U.S. proceedings.

"The important point about this list (of U.S.-subpoenaed evidence) is that none of the items includes...recording transitory information; that is, data concerning the moment-to-moment transactions undertaken by users of Kazaa," Wilcox stated.

He added that the Anton Pillar order "does just that," as the order authorized the recovery of data that "must be constantly changing."

"In an ideal world, it would be preferable for parties not to need to resort to Anton Pillar action," Wilcox said, adding that in this case, there was little other alternative to "taking a 'snapshot' of the scheme in operation."

Wilcox said that if he had to make the decision to approve an Anton Pillar order again in the same circumstances as those of Feb. 5, he would take similar action.

"Evidence about dynamic operation is available on relevant computers, from moment to moment, as the transactions occur. If that evidence is to be available at the trial, there must be snapshots, perhaps many snapshots, showing the changing data in the system, moment to moment," he said.

It would be desirable, the judge said during the court proceeding, for the parties to consult about the material taken on Feb. 6, to rectify any incidence of mistakenly confiscated material that may fall outside the authority of Anton Pillar orders.

The principal proceeding of Universal Music Australia and Sharman License Holdings is scheduled to be held March 23.

Source, Last modified: March 4, 2004, 10:35 AM PST