Kazaa AU case may go to trial in November

On Thursday, Justice Murray Wilcox set a tentative trial date of November 29, and directed discovery and affidavit proceedings be completed by October. A range of procedural matters were raised in court regarding access to evidence seized from Sharman Networks and affiliated parties earlier this year.

On February 6, the music industry's copyright enforcement arm, Music Industry Piracy Investigations (MIPI) raided the offices of Sharman Networks and Brilliant Digital Entertainment, along with the homes of key executives and several Internet Service Providers.

MIPI had obtained an Anton Pillar order - which allows a copyright holder to enter a premises to search for and seize material that breaches copyright without alerting the target beforehand.

The evidence is presently in the care of an independent solicitor.

At the day-long hearing yesterday, Wilcox said the discovery process should be completed by August 13, with applicants' affidavits filed by mid-August and responses by Sharman filed by early October.

Sharman, however, said the discovery process could take longer, with lawyer Robert Ellicott QC raising a new motion against the legitimacy of the evidence. He claimed that the raids executed on the Sharman premises may be in breach of the Telecommunications Act.

The argument refers to section 7 of the Act, which states a person shall not "intercept ... a communication passing over a telecommunications system".

Ellicott said that in carrying out the Anton Pillar orders, the Act was breached by the "recording of communications from the routers of the raided premises before they had been received by the companies' computers".

He also argued that the action was undertaken without the knowledge of the person making the communication, (which is also stipulated as a breach of the Act).

However, the music industry -- represented by Universal Music -- contended that what was recorded may not even fit within the statutory definition of "communication".

Universal said if Sharman was concerned a breach [of the Act] had occurred, then the company should have taken steps to access the evidence as any such breach would be recorded.

"Why weren't steps taken earlier if criminal conduct was being considered in regards to the the Anton Pillar orders," asked Tony Bannon QC, Universal's legal representative.

According to Wilcox, the operation was not carried out "behind the backs" of the operators of various raided premises, and in further response, he told Ellicott that "with all due respect, you haven't produced any evidence from anybody".

Wilcox added: "Frankly, I think the whole thing is a distraction from the case."

Ellicott's submission was rejected due to lack of evidence and Wilcox ruled that Sharman should cover the cost of that section of the proceedings as the motion was unnecessary.

The music industry, Sharman and associated parties were originally issued a timetable for the discovery process at a hearing in May. Wilcox ordered those parties to submit applications to specify which evidence they needed to access for the case before June 25.

However, the process has been slowed significantly amidst claims and counter-claims over access to evidence.

Universal's lawyers accused Sharman and its associates of trying to stall the case by not complying with orders made at the last hearing. "It's all there; why can't we look it?" said Bannon.

However, Ellicott said the process of making copies of the materials had been delayed, forcing the schedule back and leaving insufficient time to go through the files.

"This is one of the most important copyright cases that has occurred," said Ellicott, adding that there were around half a million electronic files to sift through to respond to Universal's case. Ellicott said doing that would take the Sharman parties "at least" a month. Wilcox advised the Universal lawyers to "trim" down their case load.

The parties also disagreed on how the process of discovery and filing of affidavits should continue, as Sharman introduced several new motions regarding Universal's statement of claim.

Both parties are expected back in court on July 16 to present the outcome of talks on the procedural issues confronting them.