Kazaa fails to overturn music biz data seizure orders

An Australian court has rejected an application by Kazaa owner Sharman Networks to overturn information seizure orders granted to music industry anti-piracy investigators.

On 6 February, Music Industry Piracy Investigations (MIPI), an organisation sponsored by the Australian Recording Industry Association (ARIA), raided the Kazaa HQ and a number of Internet companies and Australian universities. MIPI was seeking information relating to the legal proceedings it subsequently launched against Kazaa the following week.

At the 10 February hearing, Kazaa's lawyers asked Federal Judge Murray Wilcox to overturn the Anton Piller orders granted to MIPI. Those orders made the raids possible - overturning them would prevent MIPI from using information grabbed during the raids. The Kazaa legal team claimed that MIPI had not provided the judge with all the pertinent background information when the organisation had applied for the orders.

The lawyers allege that MIPI did not tell Judge Wilcox that Sharman had already agreed to submit to depositions and co-operate fully with US Court of Appeal proceedings.

The appeals court case centres on an attempt by the movie and music industries to overturn a US Federal Court decision that Grokster, Morpheus and by implication other P2P software suppliers are not liable for acts of copyright violation committed by their users. Kazaa believes that MIPI's case againstg it will collapse, if the content companies fail in their appeal. It has asked Judge Wilcox to suspend the Australian action until the outcome of the US case is known.

"Although the detail of the US proceedings was not disclosed to me on 5 February 2004, I have reached the conclusion that the non-disclosure was not material," Juge Wilcox wrote. "The non-disclosed material would not have affected my decision to make the Anton Piller orders. Accordingly, there is no occasion for me to set aside those orders."

His ruling paves the way for MIPI to use material acquired during the raids. However, it doesn't go fully the music industry's way.

"In the rush of that day," he said, "it seems likely that some material was taken that fell outside the authority of the Anton Piller orders." He ordered that the two parties determine "a regime for custody, inspection and analysis of the material that was authorised to be taken (to) minimise intrusions into personal privacy and commercial confidentiality".

The case resumes on 23 March. ®

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