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Music case to test US-Australia FTA laws

The Australian, Canberra

Music case to test FTA laws

Andrew Colley

22 March 2005

THE music industry’s legal assault on BitTorrent file sharing will provide the first major test of new laws designed to limit ISPs’ liability for copyright breaches by their customers.

In the Federal Magistrate’s Court in Sydney, lawyers representing ISP Swiftel argued the laws would play a key role in the defence of the ISP from allegations of copyright infringement.

A consortium of music industry interests, including Warner Music Australia, is suing the Swiftel for copyright infringement because it hosted websites that supported the file-sharing platform.

Preliminary hearings in the case follow raids by industry copyright enforcer Music Industry Piracy Investigations on Swiftel last week.

MIPI secured court orders to allow it to obtain evidence to support its allegations.

Barrister Stephen Burley, under instruction from Clayton Utz, asked federal magistrate Rolf Driver to move the case to the Federal Court to deal with complex legal issues that the new provisions threatened to raise.

Burley said there was "a very real danger that this case is about something broader and we don’t know what that is". Handing down his findings, Mr Driver said the case may require interpretation of the new copyright legislation, but the Magistrate’s Court shouldn’t "shy away" from testing new areas of law.

Mr Driver declined the application, leaving the Magistrate’s Court free to establish legal precedents based on the new legislation.

The laws were introduced as part of the US Free Trade Agreement.

Clayton Utz solicitor John Collins said the case would provide a partial test of the legislation.

Collins said the issue had been touched on by the music industry’s lawsuit against the operators of MP3 enthusiast site

However, he said, the arguments that surfaced in the case were limited to questions of damages.

"If these people want to make a test case we’re very confident of the outcome and we believe we’re in the right court for the legislation to be tested," MIPI general manager Michael Speck said.

Collins said Clayton Utz was happy with the outcome of the hearing.

He said the interlocutory regime placed on Swiftel was far less onerous following today’s hearing.

Mr Driver ordered material seized in the raids to be returned to Clayton Utz within 28 days and that it was only to be used to discover new respondents in the case.