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You might recall that on 5 September of this year, Justice Wilcox handed down judgment in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd, colloquially known as the Kazaa case. It’s all about whether Sharman and others authorised infringement of copyright occurring over the Kazaa network. Wilcox J held that they did. I commented on the case at the time.

Were you wondering what had happened in the case? Whether it was on appeal? What was being done about the orders, at the time, requiring Sharman to make adjustments to their technology with a view to reducing the level of infringement occurring via the Kazaa network?

Well, thanks to the wonders of the Federal Court’s eCourt facilities, we can find out.

An application for leave to appeal was filed on 25 September 2005, and on 10 October, orders were made in those proceedings. Leave has been granted to appeal, and certain other orders have been made:

1. requiring the parties to file their Notices of Appeal within 7 days and do everything necessary to ensure all appeals are able to be heard together in the February 2006 sittings of the Court;
2. extending the stay on the injunction which, under the 5 September judgment, restrains the respondents from authorising Kazaa users to do in Australia any of the infringing acts, in relation to any sound recording of which any of the applicants is the copyright owner, without the licence of the relevant copyright owner
3. directing the convening of a conference by a Registrar of the Court, between technical representatives of parties for the purpose of discussing possible agreement on a protocol [to modify the Kazaa system in a targeted way, so as to protect the applicants’ copyright interests (as far as possible)]. The conference is to be conducted on the basis that the feasibility of ensuring either or both of the situations referred to in order 5 made on 5 September 2005 is not a matter in issue at the conference.
4. The Registrar is to report to Wilcox J on the progress of the conference and an assessment of the extent to which the parties are participating in a constructive and bona fide way in attempting to reach an agreement
5. requiring that Sharman Network Ltd and LEF Interactive P/L, on the one hand, and Altnet Inc and Brilliant Digital Entertainment Inc, on the other, each provide security for the applicants’ costs of appeal in the sum of $100,000

This is interesting. At the time of the judgment, I called Justice Wilcox ‘brave’, for being prepared to get into technological design issues. I noted that:

this is a brave move indeed. Given the experience over in the US in the Napster litigation, where similar attempts by a trial judge led to much ongoing disputation about the form of orders that only went away when the litigation collapsed under its own weight, I’m surprised that any judge would want to get into this. All the more so given the traditional reluctance of the courts to grant injunctive relief that will involve forcing parties into an ongoing relationship, which will require ‘ongoing supervision’ by the court of the order (Patrick Stevedores v MUA (1998) 195 CLR 1 at 46-47).

These orders indicate that Wilcox J was serious. He was quite prepared to get into technical design. He was serious about wanting the appeal heard quickly, and he was very serious about the need to ensure that the appeal did not prevent progress on the changing of the Kazaa technology.

But wow. At the same time as the parties are working on a really quick appeal, they are also expected to argue over amendments made to the technology, to reduce infringement. There are going to be some very busy lawyers up there in Sydney, aren’t there!