Sharman Networks, the owner and distributor of the Kazaa peer-to-peer (P-to-P) network, has applied to have a court order set aside after a raid last week by Music Industry Piracy Investigations (MIPI), a subsidiary of the Australian Recording Industry Association (ARIA).

This application prevents the recording industry from accessing seized documents until the judge has considered the case, Sharman Networks said.

MIPI had won an order against Sharman Networks from an Australian judge allowing it to search the premises of the company on February 6.

The Anton Pillar order gives the applicant the right to raid the premises of the respondent, without notice, and seize documentary or other evidence.

However, MIPI did not make several facts clear to the judge when applying for the order and the order should therefore be set aside, Sharman said in a statement. Sharman contends that the music industry has been unsuccessful in similar proceedings in the US and the Netherlands, and that the company has cooperated with the US proceedings by producing documents and statements. Having done so, it should not have to go through the same process in Australia, it said.

Speaking on Monday, an attorney for Sharman in the US said that the documents seized on the raid had already been given to attorneys representing the recording industry as part of the industry's suit against Sharman in the US.

The information seized concerned the design and operation of the Kazaa Media Desktop, the software client distributed by Sharman that allows users to share files on the FastTrack P-to-P network, said Lawrence Hadley of Hennigan, Bennett & Dorman of Los Angeles, which is representing Sharman in the US.

"That information has already been the subject of extensive productions by Sharman in its US litigation," he said.

Source code

Among other things, Sharman has released the source code to the Kazaa Media Desktop to attorneys for the recording industry under an order that restricts its distribution and use in the trial, he said.

MIPI and ARIA should have mentioned that fact when applying for the Anton Pillar order, given that the order is requested in secret and attorneys for the party accused of violating the copyright are not present.

"With this kind of extraordinary relief, the plaintiff has some obligation, when trying to get a search warrant, to represent the truth so the court can assess the merits of the application without the other party present," he said.

MIPI failed to do that in applying for its search warrant for Sharman's headquarters and the homes of Sharman executives, instead telling the court that the information it needed was in imminent threat of destruction, a prerequisite for receiving the Anton Pillar order, Hadley said.

Hadley said that ARIA members are the Australian subsidiaries of major US music labels and entertainment companies and are using the search to harass and financially burden Sharman in retaliation for court losses by those companies in the US and Europe.

The Recording Industry Association of America (RIAA), which represents music labels in their US suit against Sharman, did not respond to requests for comment.

In April 2003, a Los Angeles federal judge dismissed a lawsuit against file-sharing services Grokster and StreamCast Networks, which makes the Morpheus P-to-P software, saying that they cannot be held culpable for illegal file trading done over their networks.

Plaintiffs in that case, including the Motion Picture Association of America, the National Music Publisher's Association of America and the Recording Industry Association of America, appealed the ruling to a three-judge panel of the 9th US Circuit Court of Appeals, which heard the case in early February.

The decision of that panel may be appealed to the US Supreme Court in a case that is expected to have repercussions on the entertainment and technology industries, as well as on a related case brought by the plaintiffs against Sharman.

The judge will hear the case on February 20, Sharman said. In the meantime, the recording industry is unable to gain access to any documents seized under the order, the company said.