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KazaaGate Day 2 Kazza Responds Report from a court insider

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KazaaGate Day 2 Kazza Responds Report from a court insider

Postby AussieMatt » Wed Dec 01, 2004 12:39 am

KazzaGate Day 2

By Garth Montgomery
30 November 2004

Kazaagate Day 2

SYDNEY : Federal Court – ceremonial room 21C

The revolution has begun. By mid-morning Warrior Woman Nikki, Digital Dante Bermeister, and Sharman CTO Phil Morle had all arrived to finally have their day in court. Kind of.

Morle (who is yet to reveal any characteristics of a nickname) is the only party to proceedings to put on an affidavit. It remains to be seen whether his legal team plans to use his affidavit as evidence and put him in the witness box for cross examination.

Warrior Woman Nikki and Digital Dante Bermeister have not put on affidavits and will not be personally defending their software or companies from the witness box.

Today's big day was for Sharman SC Tony Meagher as he delivered his opening statement. Meagher has a different style to Bannon. Where Bannon is bouncing and a bit theatrical, Meagher is whisper quiet and has a scholarly air about him. About early forties with a foppish fringe and glasses, he leans in to the lectern and tilts his head to one side when addressing the judge with such considered words that his stilted style means he often appears to hesitate, despite being clearly well informed about exactly how his clients want to defend their position.

Style aside, Meagher is running the show for Sharman and came to make two clear points today. First, that people using Kazaa are also accessing files from anyone on the Fasttrack network. Second, that Sharman simply can not control the activities of their users.

In making his first point Meagher went to exhaustive measures to make sure that ol' Judge Wilcox can get his mind around this complex technology caper. There was a lot of “I would seek to spend some time trying to assist your Honour to understand the technology…”. Wilcox surely appreciated the concern. Despite being in what must be the top percentile bracket of brainiacs in this country by virtue of the fact he rules in one of the highest courts, ‘ol Wilcox stayed pretty sharp.

Meagher explained for hours that any user with a Fast track app can talk to other apps on the network and search and upload and download between themselves.

Wilcox asked: “Does that mean that a person who used the Kazaa software and who is looking for a particular item might find it's offered by somebody who is using the Grokster system?

Meagher said Yup, you got it. And Wilcox said “And I suppose vice versa; Grokster can call in somebody who is using Kazaa?

Meagher didn't want to get too caught up in the complexities he'd just raised, he was just helping ‘ol Wilcox understand, you see. “I am seeking simply to introduce your Honour to some of the complexity of this which will be relevant at various points in the argument.”

But ‘ol Wilcox really wanted to understand it. “Wouldn't your opponents be able to say that the fact that the Kazaa system can expose their copyright sound recordings to people who are not only Kazaa users but users of other systems that that exacerbates rather than lessens the infringement?”

No, no, no. Meagher put the brakes on and said ‘ol Wilcox really needed to take it “one step at a time.” The point he really wanted to make was that if there is an infringement by Kazaa users, the record industry is only protected by Australia 's copyright Act for infringements that happen in Australia .

But ‘ol Wilcox really, really wanted to understand Meagher. He wanted to address issues of geography later, but for now he wanted know why this issue reduced the claim of infringement. “I suggest to you that I would have thought it was arguable that it increased

it because it exposed and increased the range of copyright materials that might be disseminated in an unauthorised way.”

For Meagher, it was really about who offers the copyright material and where they are located. “It doesn't matter whether the user downloads from someone in Australia or elsewhere that may involve an infringement in Australia . The making available is not an infringement in Australia .”

Meagher's main point was that Australian Kazaa users represent only two per cent of Sharman's global user base. And that since Grokster is legal in the US , where most of their customers are, then they haven't done anything wrong for the most part.

Wilcox was pointed in his response. “Does that give you a defence?”

Of course not, conceded Meagher, who was looking to minimise potential damage claims based on the total volume of users and alleged infringements.

The rest of the day was spent talking about how the digital revolution was just like the 1980s. With no irony intended, Sharman and Altnet's key defence for saving future technologies rests on parallels with blank cassettes and betamax. Meagher wheeled out the Amstrad case and the Sony betamax case, which had overseas rulings that the providers of the technology had no way of controlling what their users did. Worse, they flagrantly marketed these products as able to infringe copyright.

By the day's end, Bannon was happy to accept Meagher's point that this was an Australian case testing Australian copyright law being broken by Australian users that he claims the Kazaa system encourages and rewards. And that despite the fact they could stop it if they wanted, but they don't because they're making a fortune in banner ad dollars from a system that thrives on infringements - and that's the whole reason people use it and the basis of Sharman's marketing: we got loads of people, come and target them with banner ads.

Meagher remains resolute that they can not force the Kazaa system to filter out copyrighted material without also cutting out a lot of other files that may carry similar names. The example he used was, well, if we filter out Delta Goodrem, then it'll also stop the mass rush of people wanting Helen Reddy's song Delta Dawn.

Wilcox also confirmed today that the music industry would get to look at version 3 of Kazaa's source code. By night time, all music industry forensic experts were poring over the code and the junior barristers were on standby to prepare affidavits. It would be a long night for ARIA's Dimitriadas and Balafoutis.

Dispatch hears that Bannon will be asking who exactly made the decision to change the source code delivered to the world last Wednesday.

But just before the day ended, Altnet's SC, Steven Finch had one last shot at Speck (hardman of Internet piracy).

“Your Honour, back on 14 may this year issued a warning to both parties not to conduct this case in the press. Since that time Mr Speck has withdrawn himself as a witness from these proceedings and has apparently taken that as a ticket of leave to give interviews to the press in which he describes our content freely as illegal or infringing.”

“We encourage your Honour once more to put a gun over both of our bows about talking to the media and respecting your Honour's court process.”

Wilcox couldn't help let a slight smirk curl over his whiter than white teeth. He's no doubt seen about a million Specks in his court, though this was the first hardman of Internet piracy.

If nothing else, Sharman and Altnet wanted Wilcox to justify their own ‘no comment' media strategy. But Wilcox waved it off.

“Mr Finch, I don't think that I've got any power to stop any party or any witness talking to the press.” Wilcox added that he'd rather nobody spoke to the press because then the other side would have to respond in the press too and the reporting may or may not be accurate and either way it wont help because judgment will occur in the court room, not the press.

“I don't pretend to be forbidding anybody and if they wish to ignore what I have said they are free to do so.”

Dispatch hears Speck later requested that Wilcox's words be printed on his business cards. “Speck: cant be stopped by the Federal court,” he trumpeted.

Outside court Speck was amused at the attention he was getting. “This is the biggest copyright case in the world, and they're still harping on about some bloke who's not even a witness. I think they must fancy me.”

To date, Speck (hardman of Internet piracy; can't be stopped by the Federal court) has endured:

1. court orders put forth by Sharman/Altnet to stop him viewing seized material from the raid because he isn't a solicitor or forensic expert.
2. formal complaints for speaking to the media during pre trial directions, forcing Wilcox to put a gag order on all witnesses at Sharman's urging.
3. his evidence objected to for inclusion in the final trial.
4. withdrawing from the trial, but now faced further objections for speaking publicly.

Speck singles out the Digital Dante Bermeister for being the most obsessed with him. “Kevin talks about me in interviews, he discusses my background in detail so he's been following my career for some time. The sexual tension is palpable.”

But Bermeister is not the only one obsessed with Speck (hardman of Internet piracy; can't be stopped by the Federal court). Dispatch hears that the Sydney Morning Herald is making enquiries about who the “music industry sources” that are talking in stories such as Wired's <,1412,65860,00.html> coverage of the trial. And Fairfax stablemate the Australian Financial Review grilled Speck on why he is doing press interviews.

Ahh the mainstream press. Always guaranteed to be chasing the wrong firetruck.

Bermeister and Hemming left 21A separately after the day's bun fight. With about 10 minutes till the 4pm finish, Nikki ducked out to brush her hair and touch up her make up. You never know what paparazzi will be lurking for Internet revolutionaries. Certainly apc's Reed was, who'd been forced to wait all day after embarrassing himself yesterday by melting. He found a tree for shade and sucked his thumb while waiting to get the shot he missed when Morle, Hemming and Bermeister all entered the court through a back entrance.

Reed finally got his shots and redeemed himself somewhat. Nikki was sprung coming out a side entrance of the Wentworth chambers rather than the court entrance. She smiled her way down the street as Reed finally earned his money.

I rode down the lift with the Digital Dante Bermeister. When I first interviewed him last year he was chuffed with my questions. He complimented me for being well prepared and a good interviewer. My ego was well stroked. But I hear he was a bit cranky with the yarn and when I jammed my foot in his lift to ride down and get his thoughts, he was so cool he was kewl.

Dispatch: Hi Kevin, remember me.

DDB: yep.

I stick out my hand and stand awkwardly while decides to shake it. He does.

Dispatch: Busy weekend?

DDB: Im not commenting.

Dispatch: Just asked about your weekend.

DDB: I took it easy.

Dispatch: Really? I thought you'd have had full-on legal briefings

DDB: Do I look like Im stressed?

Dispatch: No, you look very relaxed.

DDB: I am. You just keep your head down and pay attention to the facts.

Dispatch: Gotcha. Feeling fit, ready for a good legal fight?

DDB: I told you, Im not commenting.

Dispatch: You coming in each day to court?

DDB: *shrugs* see how it goes.

Dispatch: looks like you're spending a motsa on barristers. You reckon they're earning it?

DDB: Just keep your head down and pay attention to the facts.

Dispatch: How come you're not taking the [witness] stand?.....Kevin?......Kevin?..... How can I pay attention the facts if my head is down?.....Kevin?
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