Swiftel bid for higher court denied

The music industry's case against Swiftel for alleged copyright infringement will continue to be heard at the Magistrates Court, despite Swiftel's lawyers seeking a transfer to the Federal Court, Magistrate Rolf Driver decided on Wednesday.

Last week Music Industry Piracy Investigations, on behalf of the record companies, raided Perth ISP Swiftel's premises with a claim that the company hosted BitTorrent technology which it claims infringes on copyright laws.

BitTorrent technology enables Internet users to exchange or share data between them. The technology uses central Web servers, or "trackers", which contain IP addresses of users who have electronic files on their computers that they wish to make available for exchange with other users.

The offending Swiftel-hosted sites have since been shut down.

Swiftel's lawyers argued in court that the case should be heard in the Federal Court rather than the Magistrates Court, due to the complexity and novel nature of the case.

This is the first copyright case to be heard since amendments were made to the Copyright Act this year in response to the Australian-US Free Trade Agreement, they argued.

It is also the first case relating to BitTorrent technology and an ISP's responsibility, they said.

In response, lawyers representing Warner Music said technology was being developed all the time and new laws cannot be formed for every new piece of technology.

After three-and-a-half hours, Magistrate Rolf Driver decided that even though most music copyright cases heard in the Magistrates court have historically dealt with "CD's being sold in Petrol Stations and giving away free CDs at dance parties", he believed at this point that the Magistrate's court had the resources to continue hearing the case and there was no need for a transfer.

Even though there has not been a precedent with a case using amendments to the Copyright Act following the Free Trade Agreement, Magistrate Driver said he would take guidance from Justice Murray Wilcox, who is hearing the ongoing Kazaa case. He would also seek guidance from Justice Brian Tamblin, who is also hearing a case against ISP ComCen.

Both Warner Music and Swiftel Communications are due back in court April 7.

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