COPYRIGHT
Record Labels, Music Publishers, Internet

The record industry in Australia has retained the right to use Anton Piller court orders to seize evidence in cases of alleged illegal file swapping and piracy. Sharman Networks, the owner and distributor of the Kazaa file-sharing application, is considering appealing the Federal Court’s decision (04/03/04) which upheld a ruling allowing the record industry to conduct raids on its premises last month. Justice Murray Wilcox upheld the validity of use of Anton Piller orders by which a court empowers a party, that has alleged wrongdoing, the opportunity to enter premises and search for evidence. In his ruling, Justice Wilcox acknowledged that Sharman has complied with legal proceedings in the past and that the company would conduct itself in the same manner in Australia.

COMMENT: In accepting that Sharman had complied with court directions and orders in the past, Justice Wilcox went some way further than the classic test when allowing the Anton Piller order to be used. In Anton Piller KG v Manufacturing Processes (1975) Ormrod J held that the claimant must be able to show (a) a strong prima-facie case and, (b) very serious actual or potential damage and (c) that there must be clear evidence that the defendants have, in their possession, documents or objects and that there is a real possibility that they may destroy such materials. In Columbia Picture Industries v Robinson (1986) it was held that the claimant must show a strong case from infringement and the potential for serious damage. In this case, whilst accepting Sharman’s past compliance with legal proceedings, the Judge seems to feel that Mr Justice Ormrod’s third point is not as critical in the decision to allow the use of the order as the first two points, which the Judge has accepted the claimant made out.
Anton Piller AG v Manufacturing Processes (1976) Ch. 55 [1976] 1 All E.R. 779
Columbia Picture Industries Inc v Robinson (1986) 3 All E.R. 338