Last week a confidentiality order was lifted by the Court with respect to certain documents that are part of the Kazaa litigation in Sydney, Australia. A poster on Slashdot described them this way:
The most explosive documents in the ongoing Kazaa court case have emerged today,
including logs of discussions between parent company Sharman and the
Estonian developer of the Kazaa Media Desktop. They include
extraordinary admissions like: "Reporting will make Kazaa look like
spyware, as soon as it becomes evident we record downloads and
playbacks, users will flee to competitive networks" and then "One can
argue that we have knowledge of copyrighted material being downloaded
in our network and have to install filters. If we are reporting [gold]
files, then technically we could do the same for every file." Finally,
"RIAA [could] collect the IP addresses for everyone who has searched
for or downloaded that file." Despite the Kazaa developer’s concerns
over these issues, Kazaa went ahead with the logging."
Kids say the darndest things ….
It bears repeating. If you are involved in a business that is in any way contentious or subject to regulatory scrutiny, written business records have to be written with an eye to how your words will look in the ugliest dispute you can imagine. Fight your urge to exhort the troops to greater feats of labour with the battle cry "We’ll cut off their air supply!!". Etc. etc. Context is always stripped from the meaning when the words appear in the media or court docs later on, and nobody will remember the innocent explanations your very expensive attorneys will labour for many hours to contrive for you.
I have nothing against document retention destruction policies, but given the law on spoliation, the ridiculously bad press this kind of stuff generates, and perhaps most importantly of all the fact that it’s just poor management to be developing in your people a finely honed instinct for skating on the edge of the law (remember these guys?), the better way, it seems to me, is to avoid these kinds of situations like the plague, and certainly avoid putting this kind of thinking on paper in this first place. Because it will get out.
Details are in an apcmag article here.