Kazaa Fights Court Order

There were over 81 articles in today's newspapers reporting on Kazaa in Sydney fighting a Court Order that saw its offices raided over the weekend.

MIPI have been agressively chasing Kazaa to the point where they may have obtained the search court order without disclosing all the facts to the judge when applying for the order.

Is this another case of BIG business [Music Industry] domination?

Article from PC World

Kazaa Fights Court Order

Peer-to-peer company wants evidence from last week's raid set aside.

Gillian Law, IDG News Service
Tuesday, February 10, 2004

Sharman Networks, the owner and distributor of the Kazaa peer-to-peer network, says that it has applied to have a court order set aside after a raid last week by Music Industry Piracy Investigations, a subsidiary of the Australian Recording Industry Association.

This application prevents the recording industry from accessing seized documents until the judge has considered the case, Sharman Networks says.

MIPI had won an Anton Pillar order against Sharman Networks from a judge at the Federal Court of Australia, allowing it to search the premises of the Cremorne, Australia, company on February 6.

An Anton Pillar order is often used in software piracy cases, and gives the applicant the right to raid the premises of the respondent, without notice, and seize documentary or other evidence.

However, MIPI did not make several facts clear to the judge when applying for the order and the order should therefore be set aside, Sharman says in a statement.

Sharman contends that the music industry has been unsuccessful in similar proceedings in the U.S. and the Netherlands, and that the company has cooperated with the U.S. proceedings by producing documents and statements. Having done so, it should not have to go through the same process in Australia, it says.

An attorney for Sharman in the U.S. says that the documents seized on the raid had already been given to attorneys representing the recording industry as part of the industry's suit against Sharman in the U.S.

The information seized concerned the design and operation of the Kazaa Media Desktop, the software client distributed by Sharman that allows users to share files on the FastTrack P-to-P network, says Lawrence Hadley of Hennigan, Bennett, & Dorman of Los Angeles, which is representing Sharman in the U.S.

"That information has already been the subject of extensive productions by Sharman in its U.S. litigation," he says.

Among other things, Sharman has released the source code to the Kazaa Media Desktop to attorneys for the recording industry under an order that restricts its distribution and use in the trial, he says.

MIPI and ARIA should have mentioned that when applying for the Anton Pillar order, given that the order is requested in secret and attorneys for the party accused of violating the copyright are not present.

"With this kind of extraordinary relief, the plaintiff has some obligation, when trying to get a search warrant, to represent the truth so the court can assess the merits of the application without the other party present," he says.

MIPI failed to do that in applying for its search warrant for Sharman's headquarters and the homes of Sharman executives, instead telling the court that the information it needed was in imminent threat of destruction, a prerequisite for receiving the Anton Pillar order, Hadley says.

Hadley says that ARIA members are the Australian subsidiaries of major U.S. music labels and entertainment companies and are using the search to harass and financially burden Sharman in retaliation for court losses by those companies in the U.S. and Europe.

U.S. Court Case
The Recording Industry Association of America, which represents music labels in their U.S. suit against Sharman, did not respond to requests for comment.

In April 2003, a Los Angeles federal judge dismissed a lawsuit against file-sharing services Grokster and StreamCast Networks, which makes the Morpheus P-to-P software, saying that they cannot be held culpable for illegal file trading done over their networks.

Plaintiffs in that case, including the Motion Picture Association of America, the National Music Publisher's Association of America, and the Recording Industry Association of America, appealed the ruling to a three-judge panel of the 9th U.S. Circuit Court of Appeals, which heard the case in early February.

The decision of that panel may be appealed to the U.S. Supreme Court in a case that is expected to have repercussions on the entertainment and technology industries, as well as on a related case brought by the plaintiffs against Sharman.

The judge will hear the case on February 20, Sharman says. In the meantime, the recording industry is unable to gain access to any documents seized under the order, the company says.

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