p2p news / p2pnet: p2pnet is being attacked by multi-million-dollar Australian firm Sharman Networks, based in the South Pacific tax haven of Vanuatau.
Sharman, which cynically claims to be a supporter of the p2p community and which owns the awesomely discredited Kazaa p2p FastTrack file sharing application, almost single-handedly introduced spyware and other malware to the Net.
Sharman and Kazaa manager Nikki Hemming (picture) are suing p2pnet for alleged libel, claiming we defamed them in two articles which mentioned Hemming’s accommodations in Sydney, among other things. In the stories, p2pnet quoted from an Associated Press item, and from an anonymous Reader’s Write Israeli lawyer Itai Leshem now says he wrote, and which we reproduce below:
I’m the guy who arrogantly claimed that Sharman Networks implemented on December 5, 2005 an idea I sent them, which they were clueless of, to block Australians from using Kazaa. That last minute move by Sharman allowed it to continue operating Kazaa from that date until today instead of following an Australian court order which ruled that Sharman must either close down its business or implement a content filtering solution (which basically is the same as closing the business).
You can refresh your memory here.
I’m telling you this because Sharman’s attitude towards me, as well as in general, led me to take unreasonable and irresponsible actions including the claims I make below.
That is the reason why I now wholeheartedly want to claim that:
1. I am the person who posted in Israel the comments on p2pnet stories 8678 and 8699 which led Sharman to sue you (together with the Doe and Roe families).
2. You, Jon Newton, did not collaborate with me in any manner in posting the comments and you had no advance notice of the posts.
3. The opinions stated in those comments were genuine and the info was provided by a third party which is related to the Roes.
Now that we got that out of the way, to me it seems absolutely amazing that a P2P company which is fighting for its life in a court of law sues and tries to take down a site that has the explicit mission to advance the sharing of information and data which is really all what P2P is about. In the name of whatever is decent I think that Sharman must retract the case altogether and of course against you because it is obvious that you had nothing to do with the comments.
It’s not that I don’t feel compassion for Sharman’s situation as I too now claim to have suffered after being publicly ridiculed with false and defamatory expressions in front of my family, friends and anyone else who read the link above. Reading about Sharman’s agony over the posts reminded me of those long nights in which I woke up screaming my lungs out “screw loose? screw loose? Screw loose!” only to return to a vegetative state until the next psychotic outburst. Oh, the horror, the pain, the damages.
Compassion aside, too often do corporations and individuals with power or money decide that the end justifies the means although that sort of attitude should be reserved, if at all, for the weak.
When Sharman wants to save face or avoid answering questions it feels free to discredit with outright defamation a person who obviously had good intentions with respect to it. And when it wants to reveal the identity of an anonymous person Sharman suddenly becomes sensitive to the written word and assigns a famous defamation lawyer to the case which, if successful, can only mean bad news for free speech and the community Sharman regards as customers.
Anyway, it’s worth mentioning that this entire letter, if read by anyone, is unsolicited advice and text and should be viewed accordingly, nothing above should be seen as a solicitation of legal proceedings or may be used in a court of law. Such proceedings shall be initiated, if at all, on the risk of the plaintiffs alone and I reserve all rights and claims I am provided with according to any law, including my right to, with all due respect, reject the jurisdiction of Canada’s courts, the right to defend against and discredit the entire claim as well as to setoff and counterclaim with at least two claims of my own I believe I have against Sharman Networks.
Also, if the legal proceedings against you shall continue I offer to legally assign to you all rights and claims I may have against Sharman Networks including with respect to an unjust enrichment claim and the defamatory expressions used against me, if in the opinion of your lawyers this may help.
It’s not too late to kiss and make up.
Thank you for the great work you do here and for your stand on the right side of free speech,
Freedom of speech
There seemed to be a desperate urgency to the claims Sharman and Hemming were making against p2pnet, using high-profile Canadian defamation lawyer Roger McConchie to demand that we “immediately” remove the offending items.
In another demand, Sharman and Hemming made it clear they agree with Apple boss Steve Jobs that freedom of speech isn’t something they need to concern themselves with: they wanted p2pnet to name the author of the comment posts.
We didn’t comply.
For one thing, we didn’t know who the author was and for another, we wouldn’t have handed over the information even if we had known because we do believe in freedom of speech, and in the sanctity of anonymous authors which, we also believe, goes along with it. As I said in a response to the new comment, “While I have no reason to doubt what Leshem says, I don’t have, and have never had, a means of finding out who the original poster was. So I’m not in a position to confirm or deny his claim that, ‘I am the person who posted in Israel the comments on p2pnet stories 8678 and 8699′.”
Be that as it may, despite the fact we were initially being strongly told to answer Sharman’s ‘requests’ more or less instantly, presumably to protect the good names of Sharman and Hemming, that’s all she (Hemming ; ) wrote and we’ve heard nothing further.
‘Alleged greed, backstabbing, and conspiracy’
Meanwhile, Sharman and Hemming are under attack in Australia where they’re being pursued by the members of the Big Four Organized Music cartel, and in the US by fellow commercial p2p firm StreamCast Networks, which owns Morpheus.
StreamCast has named Sharman and Hemming, together with others involved with Sharman and Kazaa, in a lawsuit calling for US$4 billion in actual damages, US$12 billion in treble damages, plus additional damages and fines.
“The amended court filing details a labyrinthine story of alleged greed, backstabbing, and conspiracy that culminated in Morpheus being mysteriously booted from the FastTrack network in 2002, a move that StreamCast says cost it millions of customers,” said Ars Technica.
“The shutdown was allegedly done by the original founders of Kazaa (who later founded Skype) with the goal of selling FastTrack technology exclusively to Sharman Networks. In the end, though, like most such cases, it’s about money.”
‘Same subject matter’
Back to the present, the Big Four claim Sharman’s Kazaa facilitates unauthorised file sharing and are trying to have the company and the application nailed in Australia.
p2pnet alluded to the Oz trial and to Hemming’s house.
We can’t show you Leshem’s original posts, if indeed they were his. Nor can we show you our original articles. However, we can quote from a 2005 Online Reporter article which contains assertions relating to the same subject matter, and which are apparently OK with Sharman and Hemming since they didn’t sue this publication.
Nor did they sue the Associated Press, come to that. But that’s another story. Literally.
“Despite their best efforts, the labels’ lawyers were never able to find out who owns and who runs Sharman,” says the Online Reporter. “The best they could discover was a shadowy front company located on the South Pacific island of Vanuatu.
“What triggered the labels to ask for the cross examination into Hemming’s assets is her sale of her Sydney mansion to Sharman’s accountant John Myers, for 2.1 million Australian dollars ($1.55 million). After the sale, Hemming continued to live in the house. She then, the labels allege, gave about half of the sale proceeds to her live-in partner and transferred the remaining 1.1 million Australian dollars ($804,000) into a Sharman-controlled trust fund in Vanuatu.”
‘I never blamed them’
Finally, and not at all incidentally, we recently heard from Patti Santangelo, the New York mother who’ll be the first of the approximately 19,000 people who’ve been subpoenaed by the Big Four’s RIAA (Recording Industry Association of America) to take the ‘trade’ outfit on in an open court before a civil jury.
The vast majority of the RIAA’s victims, many of them young children who are also being pilloried, used Kazaa. Many say that when they bought the p2p application, they also believed they were in effect buying a license to legally download music.
They also say Kazaa failed to make it clear that the folder in which downloads were stored needed to be disabled so users wouldn’t be leaving it open for other people to tap into; and, that even if they had known, disabling the folder was beyond the technical ability of average people, especially if they were children.
“When I was first sued by the RIAA, I never blamed them for trying to protect their copyrights (not ever) and I do still believe that even though I totally disagree with how they are doing it,” Patti emailed me, continuing:
“I can never forget that my first response to who should be held accountable was KaZaa.
“To have the capability to make money and abuse an innocent consumer, or in most cases a child, is beyond my comprehension. The owners of Kazaa should be held accountable.
“I’m not sure about the laws of Canada or other countries, but here in the USA we have what is called The COPPA Act (child online protection act). This law was broken by Kazaa. I know this because a requirement of COPPA is have verifiable parental consent for a child to download their so-called ‘free’ service, and this never happened.
“I want so much to be able to stop them from doing this and of course help you in the process. Let me know if you think my experience with what Kazaa has done to me can at all help us in our battles.”
For me, there are two separate issues:
In the first, I’m being sued, and I’m going to defend myself before a Canadian jury.
Secondly, and more importantly, as I say here:
“Although the Sharman / Hemming suit appears to be a straight defamation claim, what’s really on trial is whether or not an online publication – a blog – can be held responsible for something someone else posts. Or put another way, is a blog in reality a content filter acting on behalf of persons unknown?
“And there’s something else: as far as I’m concerned, an anonymous post is the same as a confidential source. I don’t have to like a post, or even agree with it. But I believe that as an honest and responsible human being, I do have to safeguard the poster, if indeed I know who he or she is which in this case, I don’t.
“If Sharman wins it’ll make life a potential hell for bloggers in Canada, at the least. And you can bet the case will be used as a reference for similar actions around the world.”
“So this is more than merely p2pnet … being bullied by Sharman Networks and Nikki Hemming …”
I also say:
IMHO, I have three edges.
1 There are millions of potential on- and offline sleuths out there with access to a lot of interesting data which could be used as courtroom material;
2 There are also a lot of people who value a free and open internet; and,
3 The Canadian Charter of Rights enshrines freedom of expression, and even the ancient law of defamation needs to be respectful of that fundamental freedom.
For now, this will be a precedent-setting case and it must be heard not for p2pnet, but in the interests of freedom of speech.
p2pnet isn’t exactly rolling in money (the adverts just about cover site costs and living expenses for myself, my wife and our daughter) and seeing this through to the end will be expensive, and any help you can give will really appreciated.
However, by one means or another, our campaign to highlight the gross inadequacies in Canadian libel law will continue, and we hope it’ll inspire a move to have the laws amended, and as quickly as possible with any luck, before other Candian sites are similarly victimized.
Cheers! And all the best …..
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First they ignore you, then they laugh at you, then they fight you, then you win – Mohandas Gandhi