p2p news / p2pnet: Yesterday, the Australian record company’s media machine went into overdrive and it was a delight to see, desperate media types looking to prove their worth.

Claiming a victory, of sorts, the record company’s PR princess Felicity Moffat issued a press release describing a decision by the full bench of the federal court for the contempt proceedings to proceed in victorious terms.

Unfortunately, what happened was rather low key and when one gains an understanding of just how banal the decision was, one has to wonder why the record companies went to the trouble at all.

Justice Lindgren handed down a decision that the contempt proceedings could proceed after having had the question referred to the full bench of the federal court by the trial judge. The decision was handed down on March 23 in a five-minute hearing.

The Court had to deal with:

"Whether, having regard to the nature and terms of order 4 made on 5 September 2005, a determination of contempt of court may be made in respect of the contraventions of that order alleged in the statement of charge."

The trial judge felt the question should be answered by the full bench of the court rather than being decided by himself and the contempt proceedings were held in abeyance until the question was answered.

So now the matter goes back to a trial judge for a hearing.

The Sharman media people took the approach that this decision was a clarification which would allow them to test, read defend, the record companies allegations.

And that trial promises to be well worth the trouble of attending!

With a new lead barrister, the Sharman people seem to have gained a new lease of life and if recent performances are anything to go by, the record companies’ behaviour is bound to get a fair share of the spotlight.

So why all the trouble with a press release when in recent times the record companies’ media team have often forgotten to contact the media at all? What was different this time?

We’ll never know. It couldn’t be the whopping retainer the media people get, or a feeling of insecurity, could it?

But No, It can’t be insecurity. After all, this is the same group of people whose lead lawyer said on the final day of the appeal that he’d burst into tears if a defence lawyer made a submission against him.

One thing you can be sure of is: the media teams on both sides will guarantee entertainment for some time to come.

>>>>>>>>>>>>>>>>>>>>>>>>

Meanwhile, yesterday I posted an item featuring quotes from the Kazaa appeal. Simeon Strunsky once said “Famous remarks are very seldom quoted correctly.” These additional Kazaa appeal quotes may not be famous quotes, but at least they’re reported correctly from the court transcripts.

And they speak eloquently for the participants.

February 24, 2006 – day 5

Dr Griffith QC, acting for Mr Bermeister

At p.262: “… what is sought here (is) to say, no you can’t have this digital advance in the public interest … don’t use this programme because it may be used for non infringing use …”

At pp.262-263: “What right is there for the copyright owners who don’t even bother to encrypt and put it out to say they can demand that someone drive 317 million people including people outside the reach of Australia made even if it is capable being done.”

At p.266: “Your Honours, this case will probably get to the High Court in a year or two or whatever, one doesn’t know but your Honours when it does one might say almost with certainty by then there will be arrangements your Honour for non infringing user of single tracks to be downloaded, that’s progress … We must have progress.”

At p.266: “… your Honours there is no authority anywhere where one can see an order made to alter a programme which effectively is what is made here or to close it down when the statutory authority will be out in the public domain …”

Mr Ireland QC, acting for the Sharman appellants

At pp 273-274: “… there were 98 sound recordings in issue. There was evidence in relation to each of those 98 sound recordings of the following types. Either that solicitors or agents of the record companies had downloaded them through use of the Kazaa system on to hard disks on their computers … We do not know anything, apart from the cases where of course the solicitors’ representatives got hold of these sound recordings from the internet and we know what their motivations were. I mean it could be argued that it was done with the consent of the record companies. We don’t do that. But what we do know is their motivations for finding those sound recordings are most unrepresentative. They were there to find evidence and make a choice in use of the technology which would provide the evidence … So they can be put aside in any sense as any kind of typical user … So there is very little evidence of the circumstances in which the sound recordings about which complaint was made came to be the subject of infringement. So all of the large inferences that our learned friends seek to gain from this, one remembers the submissions about millions of infringements and millions of dollars and world wide and unprecedented copyright infringement, are based actually in the evidence of the case on very little.”

At p.280: “All I want to say about conspiracy is the case is hopeless.”

Mr Bannon SC, acting for the record company appellants, being challenged by Justice Branson on the aggressive manner in which the record companies commenced the case (with Anton Piller orders – or civil search warrants)

At p. 283: BRANSON J: “Mr Bannon, before you go on. On your previous point, might it make a difference what are the circumstances which gave rise to the litigation. Sometimes if you say to somebody, for instance trademark or you can’t use copyright it’s because the conduct in contest or it may be admitted conduct it was so blatant, selling Microsoft software in Microsoft packaging and no one is in any doubt what’s going on, you tell them to stop.

MR BANNON: Yes.

BRANSON J: This is a case kind of unlike that, isn’t it. I am just wondering whether that might be a critical factor.

MR BANNON: We submit it is not a critical factor …”

So where will it all end?

At pp 285: BRANSON J: “This proceeding was obviously a matter of great importance to the parties. It seems inevitable that whatever his Honour thought and almost certainly whatever the three judges here decide, that the matter is on its way to the High Court.”

The Wizard of Oz - p2pnet

[NOTE TO THE WIZARD: Wiz, I’m getting your emails, obviously, but my attempts to answer are for some reason bouncing back. Please give me an alternate means of communicating. Cheers! And thanks —– Jon.]

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