CBS-Owned CNET May Be Liable for Inducement of P2P Infringement, Judge Rules
CNET’s Download.com allegedly took the “unusual and ill-advised steps of distributing software programs that are capable of widespread copyright infringement while simultaneously demonstrating how to infringe copyrights using that software and evaluating the various programs as to their effectiveness in copying copyrighted material,” a federal judge said Friday. Those inducement allegations are enough for a copyright infringement suit against CNET parent CBS Interactive to proceed, U.S. District Judge Dale Fischer in Los Angeles ruled while approving CBS’s motion to dismiss vicarious and contributory infringement claims.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The case has an odd history. FilmOn founder Alkiviades David said he brought the suit for Download.com’s distribution of P2P software in part as retaliation for CBS, “the Pirate Bay of corporate America,” suing his startup for redistributing live TV signals (CD Nov 16 p22). FilmOn also includes original programming. David was joined by dozens of rappers in the suit, including Positive K, Slick Rick and 2 Live Crew’s Luther Campbell. Fischer also Friday approved a joint motion to move a scheduling conference from July 23 to Aug. 27.
Fischer swatted down the vicarious and contributory infringement claims, relying on the Supreme Court’s Grokster ruling as well as 9th U.S. Circuit Court of Appeals precedent from two of the Perfect 10 cases. “If Defendants removed the links to P2P software from their site, infringing third-parties would not be prevented from seeking the software out elsewhere and continuing to pirate copyrighted music,” she said. “This does not equate to control over direct infringement.”
Relying in part on the 9th Circuit’s Napster ruling, Fischer said it’s not alleged that Download.com “had knowledge -- actual or constructive -- of specific works of the Plaintiffs,” and that having knowledge of the “overarching purpose” of P2P software isn’t enough. “The P2P software on Defendants’ website was not developed by Defendants, is not maintained by them, and is accessible elsewhere on the internet,” and Download.com can’t disable P2P software already downloaded by users, she said.
By allegedly reviewing P2P software and posting videos showing how to use specific P2P programs to search for “songs by copyrighted artists,” Download.com can be sued for inducement to infringe, Fischer said. It’s said to have been not only distributing P2P software but “simultaneously providing explicit commentary on that software’s effectiveness in infringing copyright. Such behavior moves beyond opinion into the realm of conduct and does not directly implicate any First Amendment issues.”
CNET’s contention that such a finding would blur the “proper boundaries of editorial content” is “greatly overstated,” Fischer said: “This is not a particularly close or challenging case for inducement based on the facts alleged.” If it had only provided editorial content or only distributed the software, Download.com could have avoided liability, she said: “The Court is confident that most reasonable parties could find their way to accomplish their general goals without running afoul of inducement liability.” Claims by 19 of the defendants were dismissed because they failed to show copyright ownership in any of the works at issue.
"It is a very good sign that at the very earliest stage of this proceeding, the judge has fully and completely granted our motion to dismiss two of Mr. David’s three claims,” CBS Interactive said in a statement. “We will continue vigorously defending the third claim, and are fully confident we will prevail on that count as well."
The “strong language from the court on the inducement claim means that our case … shifts in focus” from liability to a “concentration on damages,” Jaime Marquart, lead counsel for the plaintiffs, told us. Though his team believes the ruling is “merely an application of existing law” following Grokster, it is “one of the first times that distributors at the highest level in terms of volumes … have been held accountable,” he said. Fischer focused on Download.com conduct that “we believe is going to go largely undisputed,” which is distribution simultaneous with “step-by-step instructions targeting the infringement community,” Marquart said.
The plaintiffs’ legal team is talking to “various experts” about a possible damages amount and continues looking for new plaintiffs, Marquart said: There are “a number of people on the sidelines.” At least 15 of the 19 defendants whose claims were dismissed could possibly come back with amended claims derived from registered works found through P2P software distributed by Download.com, he said, and the legal team is still “kicking around” amending the complaint to include other claims.