Michael Gilburt is a JD candidate at Osgoode Hall Law School.
On May 3, 2011, a coalition of artists, led by FilmON founder and billionaire movie mogul Alki David, filed a copyright infringement suit against CBS Interactive, its subsidiary CNET, and the Lime Group, owners of the illegal file-sharing platform Limewire.
The Complaint alleges that CNET, through its popular website download.com, served as “the main distributor of Limewire software” and received “massive amounts of revenue…on a pay per download basis and also from advertising revenues generated by advertisements placed on the download screen.” The Complaint follows from the above that CBS and CNET are guilty of “massive copyright infringement” and seeks both compensation and an injunction order to prevent CNET from promoting file-sharing software on its website.
The legal basis of the Complaint rests upon the doctrine of contributory copyright infringement, which arises when “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another” (A&M Records, Inc. v. Napster, Inc). The lawsuit alleges that CNET’s promotion of file-sharing software in return for money materially contributed to the copyright infringements that arose through use of Limewire.
The second argument advanced in the Complaint is based on MGM v. Grokster, a recent US Supreme Court case that interpreted the knowledge threshold for contributory infringement. The court held that a distributor is liable for acts of copyright infringement committed by users of its product if the distributor intended to induce the infringement. The Complaint claims CBS is guilty of inducement by paying its CNET editors to publish articles that explain how users can maximize the file-sharing software and by giving Limewire four and a half stars out of five in a software review. (Note: A similar argument was advanced by Ellen Seidler in her keynote speech at Canadian Music Week 2011.)
If the lawsuit is successful, CBS would face devastating financial consequences, as they would be subject to damages similar to those awarded to the Recording Industry Association of America in its highly-publicized judgment against Limewire. Although the outcome of the damages at trial has yet to be determined, commentators estimate the quantum of damages to exceed a billion dollars.
In my view, the argument advanced in the Complaint could have troubling implications for free speech, as it attempts to expand liability for online piracy by suggesting that CNET’s editorial comments satisfy the ‘inducement’ requirement for contributory infringement. If the court accepts this argument, websites that include an accompanying link or roadmap to a discussion of a file-sharing application may face liability for infringements committed through use of the software. Such a precedent would not only be impossible to enforce, it would also discourage free and open discussion on the web.
In a reactionary statement, CBS dismissed the allegations as frivolous, noting that the Complaint is “riddled with inaccuracies.” One example was pointed out by Leora Bates, who refuted the allegation that CNET explicitly condoned illegal downloading by referring to an editor’s note on the website, which states that “using file-sharing software to distribute copyright material without authorization is illegal” and that “CBS Interactive does not encourage or condone the illegal duplication or distribution of copyrighted content.”
Additionally, Bates notes that CNET is too far removed from the infringing activity to bear liability. Indeed, Limewire was one of over 100,000 available file-sharing platforms available for download on CNET, and can be used for a number of legitimate purposes. The Compliant contains no evidence to suggest that CNET induced users to choose to download Limewire over an alternative and use the software to commit copyright violations.
Interestingly, this case, considered by many to be “silly,” was argued by Michael Zeller, a prominent IP lawyer and partner at the top-ranked IP firm of Quinn Emanuel. Zeller defends the merits of the case on the basis that CNET, unlike other websites providing links to pirated content, stood to profit from downloads of Limewire and therefore used its editorial sections as an inducement. If the courts agree, this case could mark the beginning of a new chapter in litigation over illegal file-sharing.