Protection of copyright has always been a significant issue for the music industry. The advent of MP3 technology has seen a rapid increase in copyright infringement as audio files can now be quickly and easily distributed over the Internet.
Record companies have always taken active measures to combat infringement; however, this is proving to be an increasingly complex task as the anonymity of the Internet makes it difficult to identify those involved. Gathering sufficient evidence to commence proceedings is also difficult where information is stored electronically and can be amended or deleted with relative ease. Details of file structures, alteration and deletion details, email traffic and website usage logs can be helpful, particularly where there are gaps in the visible electronic record. Gaining access to electronic records in a format that allows forensic analysis of this information may become important in the context of copyright infringement.
Background to case
Sony Music, Universal Music and EMI Music (collectively, the record companies) identified that users of networks operated by each of the Universities of Tasmania, Sydney and Melbourne (the universities) were involved in copying and distributing audio files containing unauthorised copies of copyright sound recordings. During negotiations, the universities agreed to make backup copies of servers containing relevant websites, email systems and other files, in order to preserve the information for future use.
Subsequent investigations by the record companies could not identify precisely who was involved in infringing their copyright or provide sufficient evidence to determine whether the record companies could commence proceedings for copyright infringement. They sought access to the preserved material through preliminary discovery from the universities to try and further these investigations.
Preliminary discovery application
An application for preliminary discovery (Order 15A Rule 3 of the Federal Court Rules) from a prospective defendant or non-party may be made to assist an applicant determine against whom, and on what grounds, the applicant can commence proceedings. Orders will be made only if the applicant has been unable to obtain the information through reasonable enquiries and has reasonable cause to believe that the party has information or documents that may be relevant to the issue of identity or their right to obtain relief.
Extent of access – protection of privacy and powers of the Federal Court
The record companies proposed orders that would grant them access to all of the preserved material for searching as they saw fit. They argued that the rules governing preliminary discovery were beneficial and so should be interpreted broadly. They contended that any document that contains relevant information (even if it contains other information) was discoverable. As the CD-ROMs and tapes contain some relevant files (and are documents), they were entitled to access all of the information on them.
The universities were concerned that such an order did not protect the legitimate interests of the Universities or their users. They argued that the protection of the privacy of non-involved users of their networks was an important public interest and the access sought by the record companies allowed an impermissible degree of 'fishing'. They contended that only individual records that were relevant to the issue of identity, or a right to obtain relief, fell within the scope of the rules, and so orders for discovery could be made only in relation to those individual records.
A balancing act
Justice Tamberlin acknowledged that there was a tension between allowing broad access to the CD-ROMs and tapes, which impacts on third parties' rights to keep information confidential and the universities' rights to maintain claims of privilege, and allowing limited access, which may limit the usefulness of the discovery exercise for the record companies. His Honour said that the real issue for the court was exercising its discretion in a manner that balanced these competing interests.
Justice Tamberlin accepted the technical evidence given by the computer forensic expert called by the record companies as the basis for his orders and proposed the following process.
After giving appropriate undertakings as to confidentiality, the expert (or another nominee) was to be given access to all of the CD-Roms and tapes to search the material using the techniques and search tools he had suggested.
Information extracted from the searches was to be given to the universities. The universities could then seek legal advice in relation to claims of privilege or confidentiality (His Honour considered that this was an important protection).
The universities were to prepare an affidavit of documents and allow inspection of those documents contained in the affidavit.
What does this mean?
The decision shows the willingness of the court to adapt existing frameworks, developed in the context of paper files, to deal with the challenges presented by electronic records. Armed by technical evidence given by experts, the court will make orders that seek to recognise both the challenges and opportunities that electronic records present for parties.
The exercise of the court's discretion to make appropriate orders will be a key limitation. It appears that the court will rely heavily on expert evidence to inform it as to the amount, and type, of electronic information that should be accessible. Expert evidence that is appropriate and user-friendly will go a long way to ensuring that the court understands the technical issues and makes orders that appropriately balance the competing interests of the parties and other uninvolved third parties.
Record companies have always taken active measures to combat infringement; however, this is proving to be an increasingly complex task as the anonymity of the Internet makes it difficult to identify those involved. Gathering sufficient evidence to commence proceedings is also difficult where information is stored electronically and can be amended or deleted with relative ease. Details of file structures, alteration and deletion details, email traffic and website usage logs can be helpful, particularly where there are gaps in the visible electronic record. Gaining access to electronic records in a format that allows forensic analysis of this information may become important in the context of copyright infringement.
Background to case
Sony Music, Universal Music and EMI Music (collectively, the record companies) identified that users of networks operated by each of the Universities of Tasmania, Sydney and Melbourne (the universities) were involved in copying and distributing audio files containing unauthorised copies of copyright sound recordings. During negotiations, the universities agreed to make backup copies of servers containing relevant websites, email systems and other files, in order to preserve the information for future use.
Subsequent investigations by the record companies could not identify precisely who was involved in infringing their copyright or provide sufficient evidence to determine whether the record companies could commence proceedings for copyright infringement. They sought access to the preserved material through preliminary discovery from the universities to try and further these investigations.
Preliminary discovery application
An application for preliminary discovery (Order 15A Rule 3 of the Federal Court Rules) from a prospective defendant or non-party may be made to assist an applicant determine against whom, and on what grounds, the applicant can commence proceedings. Orders will be made only if the applicant has been unable to obtain the information through reasonable enquiries and has reasonable cause to believe that the party has information or documents that may be relevant to the issue of identity or their right to obtain relief.
Extent of access – protection of privacy and powers of the Federal Court
The record companies proposed orders that would grant them access to all of the preserved material for searching as they saw fit. They argued that the rules governing preliminary discovery were beneficial and so should be interpreted broadly. They contended that any document that contains relevant information (even if it contains other information) was discoverable. As the CD-ROMs and tapes contain some relevant files (and are documents), they were entitled to access all of the information on them.
The universities were concerned that such an order did not protect the legitimate interests of the Universities or their users. They argued that the protection of the privacy of non-involved users of their networks was an important public interest and the access sought by the record companies allowed an impermissible degree of 'fishing'. They contended that only individual records that were relevant to the issue of identity, or a right to obtain relief, fell within the scope of the rules, and so orders for discovery could be made only in relation to those individual records.
A balancing act
Justice Tamberlin acknowledged that there was a tension between allowing broad access to the CD-ROMs and tapes, which impacts on third parties' rights to keep information confidential and the universities' rights to maintain claims of privilege, and allowing limited access, which may limit the usefulness of the discovery exercise for the record companies. His Honour said that the real issue for the court was exercising its discretion in a manner that balanced these competing interests.
Justice Tamberlin accepted the technical evidence given by the computer forensic expert called by the record companies as the basis for his orders and proposed the following process.
After giving appropriate undertakings as to confidentiality, the expert (or another nominee) was to be given access to all of the CD-Roms and tapes to search the material using the techniques and search tools he had suggested.
Information extracted from the searches was to be given to the universities. The universities could then seek legal advice in relation to claims of privilege or confidentiality (His Honour considered that this was an important protection).
The universities were to prepare an affidavit of documents and allow inspection of those documents contained in the affidavit.
What does this mean?
The decision shows the willingness of the court to adapt existing frameworks, developed in the context of paper files, to deal with the challenges presented by electronic records. Armed by technical evidence given by experts, the court will make orders that seek to recognise both the challenges and opportunities that electronic records present for parties.
The exercise of the court's discretion to make appropriate orders will be a key limitation. It appears that the court will rely heavily on expert evidence to inform it as to the amount, and type, of electronic information that should be accessible. Expert evidence that is appropriate and user-friendly will go a long way to ensuring that the court understands the technical issues and makes orders that appropriately balance the competing interests of the parties and other uninvolved third parties.
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