Sharman lawyer: Witness switched sides

Sharman attorney Mark Lemming revealed on Wednesday an e-mail that University of Melbourne professor Leon Sterling sent to an employee at Sharman. The e-mail stated that Sterling was withdrawing an offer to be an expert witness for Sharman during the civil trial, saying that writing a report requested by Sharman would be "stretching his expertise."

During cross-examination, Lemming used the e-mail to question Sterling's expertise in the trial against the company, which makes the Kazaa peer-to-peer software.

"Your lack of experience in P2P makes it difficult for you to tell the court of any feasibility for the propositions you mentioned," Lemming said.

The exchange is part of a trial in which major record labels Universal Music Australia, EMI, Sony BMG Music Entertainment, Warner Music Group, Festival Mushroom Records and 25 additional applicants are suing Sharman and associated parties--including Brilliant Digital Entertainment, Altnet, Sharman CEO Nikki Hemming and others--over alleged music copyright infringement made using the Kazaa software. The trial, which began last week, is taking place in Sydney.

Sterling responded to Lemming that it was not possible for him to do a report on how peer-to-peer networks behave, which Sharman had previously requested, because he did not have the resources to do so in a short period of time.

Sterling added that he was not able to do a feasibility study on the proposals that he made and acknowledged that any filtering done in Sharman's Kazaa system would not be 100 percent efficient.

However, Sterling maintained that the suggestions for filtering and monitoring that he made on the stand Tuesday are "all plausible mechanisms" that can be added to the Kazaa system.

After a heated discussion on Wednesday morning, Justice Murray Wilcox told Sharman's representatives to present--earlier than previously scheduled--witnesses who could offer a detailed understanding of how the Kazaa software works.

Wilcox demanded that Sharman Chief Technical Officer Phil Morle take the witness stand on Wednesday. Morle was previously scheduled to testify on Friday.

Morle reiterated Sharman's stand that the company cannot monitor or control what its users do, adding that Sharman does not have the ability to force people to download new versions of the software.

Morle said Kazaa can promote the use of a newer version of the software but cannot force people to upload it. He said all that the technology can do is pop a small window to tell the person that a new version is available, which the person can close or reject and will not prevent the person from using the Kazaa system. Morle is due to be cross examined on Thursday.

Kristyn Maslog-Levis of ZDNet Australia reported from Sydney.