Kazaa Office Raid Upheld

An Australian judge has refused to set aside the Anton Piller order brought against Kazaa owner Sharman Networks, but says that the material seized must be held by independent lawyers until access can be negotiated.

Sharman's offices in Cremorne, Australia, and the homes of two Sharman executives, were raided by investigators working for the Australian Recording Industry Association (ARIA) on February 6, under an Anton Piller order. An Anton Piller 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.

On February 10, Sharman applied to have the order set aside, saying that ARIA and its subsidiary Music Industry Piracy Investigations (MIPI), which undertook the raid, had misled the judge when applying for the order.

Sharman has cooperated with similar proceedings in the U.S. and there was no reason to assume it would do otherwise in Australia, Sharman says.

Not Convinced

However, Judge Murray Rutledge Wilcox of the Federal Court of Australia ruled Thursday that while it can be assumed, based on its behavior in previous proceedings, that Sharman will "be willing to cooperate in an arranged demonstration of the Kazaa system in operation ... it is one thing to expect parties to litigation not to destroy existing evidence, it is another thing to expect them conscientiously to cooperate in the creation and recording of evidence useful to their opponents."

Evidence is needed concerning the dynamic operation of the Kazaa system, the judge said, and that can only be provided by "snapshots" showing the changing data in the system from moment to moment. The Anton Piller order was granted in order to allow those snapshots to be taken, he said.

It is possible that, "in the rush of that day," material was taken from Sharman on February 6 that ought not to have been, Judge Wilcox said. In order for this to be rectified, the parties need to negotiate a regime where the material can be inspected and analyzed.

The next court session on the matter will be heard on March 23.

MIPI was acting on behalf of Universal Music Australia, Festival Records, and Mushroom Records, EMI Music Australia, Sony Music Entertainment (Australia), Warner Music Australia, and BMG Australia, according to the court ruling.

Sharman is considering applying for leave to appeal Thursday's decision, it says.