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 attending media
, 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.”