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Judge Refuses to Rule on Kazaa Contempt Charges

Postby SlyckTom » Tue Jan 31, 2006 4:18 pm

As per order number 4, Sharman Networks was required to enhance Kazaa's already existing key word filter with an additional 3,000 words by December 5, 2005. These words would reflect copyrighted works of the ARIA's (Australian Recording Industry Association) choosing. December 5 came and went. Other than a large warning banner and a halfhearted attempt to block Australian users from the Kazaa.com domain, the Kazaa P2P client remained unchanged.

This infuriated the ARIA, who found Sharman Network's actions to be contemptuous. Indeed on December 9, 2005, the ARIA went before Judge Murray Wilcox and asked for a contempt hearing the week of the 16th. In addition, the ARIA asked for "alternative orders" for compliance of order 4. Judge Wilcox granted the contempt hearing, however delayed any arguments until January 30, 2006.

During the hearing yesterday, the ARIA wanted an immediate decision of contempt against Sharman Networks before the case headed to the Full Bench of the Federal Court. However Judge Wilcox was reluctant to rule against Sharman Networks for several reasons. The case centered on whether the alleged breach of order 4 even constituted a contempt charge. In addition, Judge Wilcox appeared concerned if he made an immediate ruling, it would discount any converse evidence Sharman Networks may be able to provide.

"It seems to me what your [the ARIA] argument to a very large extent wants to say is that because they didn't do the things that I found could be done, ergo, they are continuing in breach but it [isn’t] that simple."

In addition, Judge Wilcox appeared concerned regarding the enormous amount of time the case was consuming. Already lasting more than one year, Judge Wilcox articulated the time saving attributes of reserving the contempt arguments to the Full Court.

"Yes, this case has been going for a long while. It has cost the earth. The sooner it can be finalised the better. I just think it would probably end up being finalised quicker if you don't have a separate hearing, a separate appeal, on the contempt matter."

Later in the hearing, ARIA lawyers bided for extra time in order to address Judge Wilcox’s proposed orders. ARIA lawyers were concerned with the Full Court seeing new evidence, as it meant examining what the FastTrack network looked like post December 5. To the seasoned P2P user, Sharman's efforts were futile. Yet to a relative newcomer, the blocking efforts may provid a deterrance.

“I [ARIA lawyer] just want to consider the ramifications of [the proposed order] because I say again, it wasn't suggested before lunch in that form, and it may be we want to get instructions from overseas as well.”

Who these overseas individuals are is unclear. However according to <a href=http://www.apcstart.com/kazaagate/gallery/trial/ target=_blank>attending media</a>, Allen Dixon, former Global Counsel for IFPI, was present the Australian Federal Courthouse. His role was not determined, however it raises several questions; such as who is controlling the case, who these “associates” are, and who the ARIA is receiving instruction from.

Judge Wilcox did not rule on a contempt charge in yesterday’s hearing. Instead, he indicated he would reserve the decision, along with all appeals, to the Full Court. It appears he wrestled with the decision, contending there were unfair attributes in contributing additional workload on his colleagues. However in the interest of consolidating numerous hearings, it’s likely this matter will not be resolved until the Full Court trial begins. In an interesting twist, Judge Wilcox also dismissed the ARIA’s "alternative orders" motion, at full costs to the Australian music industry – the first time in this case’s history the ARIA has to pay Sharman’s court costs.

If all unresolved matters do head to the Full Court, the ARIA may have their work cut out for them. When arguing the presentation of evidence, the ARIA lawyer appeared uncomfortable with the Full Court. “You basically don't trust the Full Court,” Judge Wilcox stated. “We don't,” replied the ARIA lawyer. Infuriated, Judge Wilcox shot back:

"You're treating them like a jury who must not be told things that everybody knows and the view has always been taken, rightly or wrongly and arrogantly or not, the judges are better able to compartmentalise information than jurors are. But basically what you're saying is that the judges shouldn't be allowed to see this material, lest it affect their determination on the basis of the evidence given at trial. Now, I happen to have a rather…more flattering view of my three colleagues than you do.”
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Postby hacker90 » Tue Jan 31, 2006 4:35 pm

Nice article thanks.

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Postby Nick » Tue Jan 31, 2006 4:44 pm

Thanks for the update on this.

I'm now getting the impression that ARIA's strings are being pulled more by the IFPI than by the RIAA.

I would think that Judge Wilcox will be as intolerant of what he doubtless views as foreign intervention as he is to any inferred mistrust of the full court.

His reluctance to consider a contempt issue is a tribute to his diplomacy, but this one can't carry on indefinately.
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Postby Dormant707 » Tue Jan 31, 2006 4:47 pm

Full props to Judge Wilcox. I admire his principles and ethics. The slimebags that are representing the ARIA certainly are not endearing themselves to the judiciary in Aus.

I reckon SlyckNick is right. The carcass that is Sharman should be put out and buried once and for all. Sharman networks will not really survive this.

Nice article Tom!
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Postby stoops » Tue Jan 31, 2006 4:50 pm

SlyckNick wrote:I'm now getting the impression that ARIA's strings are being pulled more by the IFPI than by the RIAA.


The IFPA is obviously like the puppetmaster!...

Does anyone know why the ARIA doesn't trust the full court? and what material they don't want them to know?...
"Honey bring me a beer. I've got a war to win!" - Bill Hicks
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Postby Christopher » Tue Jan 31, 2006 7:07 pm

stoops wrote:
SlyckNick wrote:I'm now getting the impression that ARIA's strings are being pulled more by the IFPI than by the RIAA.


The IFPA is obviously like the puppetmaster!...

Does anyone know why the ARIA doesn't trust the full court? and what material they don't want them to know?...


That's quite a good question, what could they possibly have told the single judge, that they don't want all three to hear! Or better yet, what HAVEN'T they told said judge, that other judges might bring up when they use their brains.
I am not as stupid or naive as people would like to believe I am.
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Postby Drake » Tue Jan 31, 2006 7:38 pm

Go Sharman Networks! :)
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Postby Nick » Tue Jan 31, 2006 8:15 pm

Having had brief sight of additional information, I get the impression that there is concern that if Wilcox J also heard the contempt issue, he could then be biased in the final judgement. The resistance to change arises from the need to familiarise new people with the technicalities of the case and the risk of further delays.

The judge obviously has reservations over the severity of the alledged contempt, not thinking it wilful, and clearly wants to move things to an overall conclusion without unnecessary distractions.

At the same time, the judge also feels that it is effectively sufficient to block Australians from signing up to Kazaa as new members, having said as much.
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Postby Burnin Brent » Wed Feb 01, 2006 1:26 am

Pffffffft, what a bunch of weenies. First we have RIAA, and IFPI, and what the fuck is this ARIA shit now?
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Postby WildHeart » Wed Feb 01, 2006 1:50 am

I'm beginning to think that Sharman may be able to escape this with little real damage. It doesn't pay to piss off the judges--and the ARIA has done that quite a bit.
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- Will Rogers -
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Postby Fez » Wed Feb 01, 2006 1:58 am

Ya...that counts for a lot...
If you can avoid pissing off the judge, it is ALWAYS in your best interest...

But the **AA's haven't really been accused of being too smart at any point in the proceedings.
:wink: :lol:
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Postby IceCube » Wed Feb 01, 2006 2:12 am

Fez wrote:Ya...that counts for a lot...
If you can avoid pissing off the judge, it is ALWAYS in your best interest...

But the **AA's haven't really been accused of being too smart at any point in the proceedings.
:wink: :lol:


Judge: "On the grounds of 'WTF???', I here by find the ARIA guilty of 'severe fl4m1ng'. They are now perminently sentenced to 'OMG STFU n00b!!!'"
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Postby Fez » Wed Feb 01, 2006 2:18 am

Judge: "On the grounds of 'WTF???', I here by find the ARIA guilty of 'severe fl4m1ng'. They are now perminently sentenced to 'OMG STFU n00b!!!'"


Nice work...I just snorted out my drink...!!!

That isn't exactly what I was thinking, but it is on the right track...

I good friend of mine is a criminal defense attorney and one of the first rules of law he ever taught me was do NOT mess with the man behind the bench.
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Postby IceCube » Wed Feb 01, 2006 2:55 am

:lol:

Sorry, I didn't think it was exactly what you were thinking either. It was a little random and I'm not exactly sure how I got that out of your post anymore, oh well. :)
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