p2p news / p2pnet: Kazaa p2p file sharing application owner Sharman Networks is having a tough time.

Kazaa has been severely criticised by a new badware group, and as the Sydney Morning Herald points out, it’ll, “have to fight on yet another front in its long-running legal battle with Australian record companies.

“A judge has given the record companies the green light to initiate contempt of court proceedings against the company after it chose to block access to its network in Australia rather than implement keyword filters.”

Sharman claims that by making the site inaccessible to Australians, it was complying with the court orders pending the outcome of its appeal, says the SMH.

“Today’s case was procedural and the judge has confirmed that another court will consider this matter,” says Sharman. “This clarification by the judge is useful and we look forward to the opportunity to test the record companies’ allegations.”

No doubt there’ll be a number of interesting twists and turns as the lawyers for each side do battle —

— again, as The Wiz points out >>>>>>>>>>>>>>>>>>>>>>>>

Prior to the Kazaa appeal proceedings, I thought I’d heard it all. Surely in more than two years of proceedings, everything of value which could have been said, had been said? However, reading the appeal transcript, it’s clear I was wrong.

There was so much more to be said.

I went to the appeal expecting a meeting of the greatest minds of the land. I expected articulate, well conceived arguments, points of contention, sarcasm, pithy comments. I wasn`t disappointed. There was that and much more laughter, and even, as it turned out, tears.

Disraeli said it best when he said “the wisdom of the wise, and the experience of ages, may be preserved by quotation.” But of course, Disraeli was only echoing Sophocles who said, “A short saying oft contains much wisdom.”

So with that in mind, here are some key quotes from the Kazaa appeal transcript:

February 24, 2006 – day 5
Mr Ireland QC, acting for the Sharman appellants

At p.266: Copyright should be paid for but that doesn’t mean you can choose to non encrypt your music and then come along and threaten people with gaol, bankruptcy, insolvency, take a programme away flood them out and if they’re not flooded out drive them mad and drive them mad anywhere in the world. Now that’s not something this court should countenance

At p.270: There were a lot of assumptions in the respondent’s case here that we created the network. We didn’t create the network. The FastTrack network was one in which competitors operated and you have heard that.

At p.271: So what we put out was quintessentially capable on the most uncharitable view of what we were doing of good and of evil. We did not put out a system which was capable only of copyright infringements it cannot be said that the dissemination of something with a capacity to do good and evil in the sense of infringing and non-infringing activity, is one which constitutes an authorisation.

As we can see from the following exchange between Justice Branson and Mr Bannon SC, acting for the record company applicants, sometimes the exchanges can become very emotional.

The most surprising submission made during the appeal was when the record company`s lawyer threatened to burst into tears

At pp 285-286: BRANSON J: It may ultimately not matter very much but it does seem to me surprising to say that you proceeded on the basis that an entirely different document would be regarded as your application.

MR BANNON: I can understand how your Honour says that. All I can say is, it is hard to recreate before this court the significance, apart from the bull’s roar comment – as you read that whole transcript, the significance, what everyone appreciated was the debate which we were having, namely, we were being asked by them to tie our colours to a particular mast and we kept vigorous – I know I am repeating myself, but we kept vigorously saying we can’t and we don’t have to but we did and in what we thought was a very precise and formal document. We have had one before which his Honour was referring to as the bull’s roar comment, and that resulted in vigorous and eloquent, as one might imagine, complaints from the parties led by my learned friend, Mr Walker, and that’s why I promised I would do my homework overnight and we came back the following morning and we did it. So, in other words, there was a vigorous contest at trial which resulted in our being forced to confine ourselves to this particular document and be specific. There was a lot going on. There was expert evidence going everywhere. We had witnesses – one sat on a Saturday – we had witnesses late and everyone was operating under an extreme amount of pressure. It was all sides, not just our side, but everybody. The culmination of this process of identifying the orders was the production of this document and, as sometimes happens, a contest is felt to be exhausted, then people move on to whatever else it is they are doing and this was just simply overlooked. Pardon me a moment. No other counsel supports Mr Ireland’s position.

BRANSON J: You put that in terms of no other counsel has said anything in support.

MR BANNON: And if Mr Walker supported it I would have to burst into tears.

More tomorrow ; )

The Wizard of Oz – p2pnet

Also See:
severely criticised – Spyware Kazaa slammed, March 22, 2006
Sydney Morning Herald – Kazaa faces new court battle, March 23, 2006

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