In a two-week-old case pitting KaZaA parent Sharman Networks against the Australian music industry, attorneys for both sides argued over what evidence should or should not be admitted – including one piece predicting KaZaA would end up in much the same boat as the original Napster. Music industry attorneys also charged that KaZaA's search mechanism "could contain" malicious code.
The evidence under contention includes an email reportedly sent to Sharman employees as well as workers at partner Altnet, an email said to have addressed results of a May 2003 focus group which discussed KaZaA and other peer-to-peer network usage. That email said the focus group saw KaZaA, which it said had the widest variety of music and volume of users, as a "free music concept… [coming] to an end similar to Napster," according to reports from Australia.
Universal Music Australia lead attorney Tony Bannon wants the email admitted to evidence on grounds that it's part of a "chain showing [KaZaA] are genuinely and specifically aware" that the P2P network's users use it "as an engine of piracy," with Sharman doing nothing to stop it. "In fact," Bannon was quoted as saying, "they are encouraging it."
The 18-member focus group sent the e-mail to Sharman chief executive Nikki Hemming, Altnet chief executive Kevin Bermeister, and both companies' chief technical officers, Phil Morle (Sharman) and Anthony Rose (Altnet), as well as other workers in both companies.
A reported "very few" of the group members said they noticed information on KaZaA's Web site about so-called Gold (content licensed to be distributed by Altnet) and Blue (provided by KaZaA users) icons – information including an advisory from KaZaA that individual users are responsible for "responsibly and legally decid[ing] which files to share and which are to be downloaded."
Meanwhile, another Australian music industry attorney, John Nicholas, told the court December 16 that a spate of viruses and other malware code moving online included some moving through KaZaA's search mechanism.
Cross-examining KPMG forensic director Rodney McKemmish, Nicholad got McKemmish to agree it's possible for KaZaA's search mechanisms to include malicious code, but McKemmish hastened to add that running such code "is a separate issue."
