Aussie judge sets Kazaa trial date

Kazaa parent Sharman Networks' battle with the music industry may finally come to trial in November, the Australian court cautiously ruled this week.

Sharman and representatives of Music Industry Piracy Investigations (MIPI), the Australian music industry's anti-piracy taskforce, returned to Justice Murray Wilcox's courtroom yesterday.

Judge Wilcox pencilled in a 29 November 2004 trial date, with discovery to be completed by October, after Sharman lawyer Robert Ellicott argued against an earlier discovery deadline of 13 August.

Ellicott also claimed that evidence seized from Sharman's premises may not be admissible, arguing that the raids undertaken by MIPI were in breach of Australia's Telecommunications Act.

The raids took place on 6 February 2004, and targeted Sharman's HQ and company executives' homes and a number of other Internet firms. MIPI had been granted Anton Piller orders authorising the raids, which were conducted to retrieve evidence of copyright infringement.

An Anton Pillar Order is a search and seize order, used in Australia and the UK, giving one party in a legal dispute the right to enter premises and search for evidence. The application is made without the knowledge of the party who is to be searched - the judge must be satisfied that material concerning the case would be destroyed unless secrecy was maintained.

Since Sharman's Anton Pillar raids, lawyers have attempted to have the orders deemed inappropriate and thus have the evidence seized thrown out of court. Judge Wilcox has allowed the orders to stand - Sharman is appealing against his ruling - but agreed that the evidence obtained should be sifted to remove any material nor pertinent to the terms of the order.

The parties have not agreed a procedure by which this review should be conducted, and this has continued to hold up the case since March this year.

Sharman wants to delay the case. It hopes that the US movie industry's appeal against a 2003 District Court ruling that liberates P2P networks from the acts of their users.

Indeed, Judge Wilcox dubbed Ellicott's latest argument as a "distraction". Ellicott maintained that during the raid, MIPI had breached the Telecommunications Act, which forbids the interception of a "communication" passing through a telecoms system. MIPI infringed the Act by taking "communications" from Sharman's routers before they were relayed to the company's computers, and it did so without making Sharman aware of the fact, he submitted.

Wilcox dismissed the argument, due to a lack of appropriate evidence and ruled the Ellicott's motion to have the Anton Piller evidence rejected to be unnecessary.

MIPI and Sharman must return to court on 16 July to report on the progress of their negotiations over how each should be granted access to the seized material. If no clear review procedure is in place, the trial could be delayed even further. ®

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