Kazaa, owned by Sharman Networks Ltd., said Tuesday that it has applied to have a court order set aside after a raid last week by Music Industry Piracy Investigations (MIPI), a subsidiary of the Australian Recording Industry Association (ARIA). Lawyers representing Kazaa informed the Australian federal court today that they will challenge the validity of the court order that resulted in a raid on the company’s offices last week.
Kazaa is the web’s largest peer to peer file distribution network which has 3 million to 4 million users online at any given time and is also one of the largest distributors of Search Engine Query targeted AdWare (not part of the court case). Kazaa distributes Claria’s GAIN contextual advertising which shows browser based ads when users perform certain search engine queries and Kazaa also distributes browser based “URL box” paid keyword search results – when someone types keywords into their IE browser address box, instead of URLs.
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 Feb. 6
According to reports, The Federal Court granted major Australian record labels permission to investigate 12 sites, including the office of Kazaa owner Sharman Networks, the homes of two of the company’s executives, three Australian universities and Internet service providers, including Telstra.
Counsel for Sharman pointed to a number of material facts that recording industry plaintiffs had not disclosed to the Court when applying for the Anton Piller order.
“There is a duty to give full and frank disclosure to the Court of all material facts in order to obtain an Anton Piller order,” lawyers for Sharman said. “It is Sharman’s position that the recording industry failed in this duty. Because of this, the orders should be set aside.”
The most significant of the many omitted facts were:
* The music industry had already been unsuccessful in comparable proceedings in the Netherlands and US concerning allegations of copyright infringement against other providers of P2P technology;
That Sharman had already cooperated fully in current US proceedings by producing documents and giving statements, and that the documentation now sought by Australian recording industry companies need not be applied for or produced a second time.
* “Threat of destruction of potential evidence is a key precondition of an Anton Piller order,” Sharman lawyers said. “Clearly there was no risk of destruction of documentation as Sharman has already provided the information the recording industry seeks.
Sharman Networks’ lawyers asked for the Australian proceedings to be stayed until the American case concludes. There, the major record companies lost a legal attempt to shut down Kazaa but they have appealed the ruling.