MIPI serves papers on Kazaa offices in Vanuatu

R. A. Hettinga rah at shipwright.com
Mon Feb 9 12:48:51 PST 2004

For any of you who still think that "regulatory arbitrage", or
"jurisdiction shopping" ever had a chance...



The Sydney Morning Herald
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MIPI serves papers on Kazaa offices in Vanuatu
 By Online Staff
 February 9, 2004

 The enforcement arm of the Australian record industry has served papers on
two Kazaa-related companies in Vanuatu, following the raids which took
place on Friday and Saturday.

 Music Industry and Piracy Investigations general manager Michael Speck
said both Sharman Networks and Sharman Licensed Holdings had been served
with papers this morning.

 Speck said the case would be taken to court on the morrow, with MIPI
alleging that the operations of Sharman infringed copyright in Australia.

 AAP adds: While the Record Industry Association of America has been
ferocious in its quest to stamp out illegal file-sharing, The Australian
Recording Industry Association (ARIA) has appeared less than active in
recent years, despite Kazaa operating out of Sydney for the last three
years. That is, until Friday.

 The man behind the raid is Michael Speck, the head of ARIA's Music
Industry Piracy Investigations (MIPI) unit.

 "We started an investigation six months ago and it was based on technical
and physical changes in the infrastructure of Kazaa," Speck said.

 "At that point it was becoming apparent that they had become an Australian
operation infringing Australian copyright".

 Although Kazaa has been based in Sydney for the last three years, it was
only recently after internal changes that the company was recognised
legally as an Australian operation.

 "Essentially there were physical changes to the resources and technical
changes of the software that make it clear that what the Kazaa operation is
doing is clear-cut infringement of copyright in Australia," Speck said.

 "We've actually over the last several years run a whole range of important
strategic cases. The objective of those cases was to develop a safe and
productive environment for music business and their consumers. As far as
Kazaa is concerned this last six month period has changed their position.

 ARIA/MIPI issued proceedings against Kazaa in the Australian Federal court
under strict guidelines.

 "It was a civil raid by way of Anton Pilar orders" Speck said.

 "What they are is the civil equivalent of a search warrant. On Thursday we
went to the Federal court and we applied for orders to attend premises, to
obtain documentary and electronic evidence that related to the Kazaa
operation. To do that, you have to show the court you have a case and a
fear about the dissipation of evidence before the orders are issued.

 "When the orders are issued they are on a very restricted basis. You are
obliged to take an independent lawyer who reports directly to the court
about the conduct of the search or any search process and also about what
was located and taken. On the team is also a music industry lawyer, a music
industry investigator and a computer forensics expert. By way of context,
when you do these, you don't actually take anything away. You copy it. We
started at about 8am and the very last group of investigators left the
offices of Kazaa in the early hours of Saturday morning."

 According to Speck, they entered "the offices of the Kazaa operation, so
Sharman at Cremorne, the home of Nikki Hemming, the chief executive of the
Sharman organisation, the home of Philip Moore, the IT director, Brilliant
Digital Entertainment, the joint venture partners and the home of Kevin
Bermeister, the chief executive of Brilliant".

 The three Universities were "Queensland, The University of NSW and Monash".

 The four ISPs were Telstra, Akamai, iHug and NTT.

 "There are no allegations against the universities or ISPs," Speck says.
"They simply because of the nature of their business contain evidence we
believe is relevant against the Kazaa operation".

 Speck expects action will be swift.

 "We are back in court on Tuesday to report on the search," he says.
"Generally at that time, a timetable is set for the case to start and
evidence to be put forward. It will be a relatively quick process".

R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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