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7
Mar 04
Sun

Kazaa and the Anton Piller order

You may have heard how the Australian music industry, authorised by something called an “Anton Piller order”, recently raided 12 sites around Australia, seizing documents and data, in its pending lawsuit against Sharman Networks, makers of Kazaa. Sharman obviously didn’t like these Gestapo tactics and went to Court to challenge the legality of what the music industry did. A few days ago the judge came back with an answer, which was: tough luck, Sharman, grin and bear it.

This seems a little scary, that the music industry could bust down your door and raid your house for incriminating evidence. So what exactly are these Anton Piller orders, anyway? Surely a company can’t just demand one from the courts and go traipsing about other peoples’ homes and offices willy-nilly?

The Anton Piller order was first used in a UK case featuring a plaintiff called Anton Piller (Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). These guys were annoyed that some people (a bunch called “Manufacturing Processes”) they were doing business with were leaking their trade secrets out to competitors. Obviously they wanted to sue them, but they also needed to get evidence somehow without tipping the leakers off. If they were tipped off, they would mostly likely dispose of the evidence down a toilet or something like that. So the judge authorised Anton Piller to go to the leakers’ office and find what they need, without giving the leakers any prior notice of what was going on.

So that’s what an Anton Piller order is. It allows a plaintiff to get information from the premises of someone they want to sue, when that person is likely to destroy that information as soon as they get wind of a lawsuit coming their way. If you knew you were about to be sued for all those MP3s on your hard drive, wouldn’t the first thing you’d do is delete them all (or move them onto a portable hard drive) and then say, “What MP3s?” That’s why the order is given without notice.

Now it sounds a bit like a police search warrant – banging down front doors with maglites and German Shepherd dogs and all that – but technically it’s not. It’s actually a court order (specifically, an injunction) that orders a person/company to give permission to a plaintiff to find out what information they need for the lawsuit. They are not allowed to barge down doors or rappel down walls. The plaintiffs must bring their lawyers along, and also give the defendant a chance to contact their lawyers. And if the defendant tells them to get lost, they have to comply and tell the court what happened (which will result in the defendant being held in contempt of court). The defendant can also contest the order, which is what Kazaa did.

So although it sounds all dramatic, the “raids” were really a group of music executives and lawyers going door knocking. But it still is all extremely invasive and intrusive. (Of course, Sharman rightfully milked the media by making it sound like the music industry are a bunch of Nazis for doing what they did.) What Kazaa took offence to was that there was no evidence that they would have destroyed any evidence had they known they were going to be sued. They pointed to how nicely they’ve cooperated in the US lawsuit and the Dutch lawsuit as evidence of that. Justice Wilcox disagreed.