Last year, Alki David and a coalition of artists sued CBS and CNET for their role in distributing uTorrent, LimeWire and other P2P software.
The artists claimed that CNET profited heavily from distributing file-sharing software via Download.com, while demonstrating in editorial reviews how these application can be used to download copyright-infringing material.
In the original complaint the artists pointed out several examples where CNET editors posted videos and screenshots of infringing materials. For example, a review of MP3Rocket included a screenshot of pirated songs from Madonna, Lady Gaga, Alicia Keys, Usher, Rihanna and Eminem.
CBS and CNET responded to these allegations by arguing that these videos and articles are merely opinions. If they were held liable for inducing copyright infringement then that would be a violation of their right to free speech under the First Amendment.
However, the Judge disagrees and points out in her ruling yesterday that inducement can be considered because CNET is also distributing the applications they review.
“Defendants here are alleged to have distributed specific P2P software, while 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,” Judge Dale Fischer writes.
The Judge adds that “most reasonable parties” could easily avoid inducement liability under Grokster by separating the reviews from the downloads.
“It would not be difficult to avoid liability by either (1) only providing editorial content without distributing the software or (2) distributing the software without demonstrating or advocating its use for violating copyrights,” Judge Fischer writes.
As a result, the Judge decided to deny CBS/CNET’s motion to dismiss the inducement claims. The motions to dismiss the claim for vicarious copyright infringement and material contribution to copyright infringement were granted.
Alki David, who started the lawsuit after CBS sued his company FilmOn for copyright infringement, was delighted with the ruling and notes that the lawsuit will go full steam ahead.
“This is a huge win for us. This sets the precedent for other artists and copyright owners whose work has been illegally distributed by Limewire, BitTorrent, FrostWire and the billions of copies of P2P software which CBS continues to induce people to download and steal,” Ali David said responding to the ruling.
According to David, the evidence that his legal team has will further reveal that CNET linked to numerous copyrighted songs on its website.
“Our evidence will show that not only do they have vicarious liability but CNET actually embedded links from their web pages to thousands of known copyrighted songs. That puts a giant “I” on inducement,” David says.
Jaime Marquart, the attorney for the artists, says he will now move to the damages claim, which could in theory amount to hundreds of millions of dollars. “The focus of the case now shifts from the question of liability to the question of damages for our many plaintiffs,” he says.
While the case is not yet decided, CBS and CNET are in a tough spot. Time will tell if the inducement claims hold up, and what this means for other online publications that distribute file-sharing software.
Update: CBS is happy with the two dismissals and says it has a good defense against the inducement claims as well.
“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. We will continue vigorously defending the third claim, and are fully confident we will prevail on that count as well. We look forward to beginning our defense as to this last remaining claim,” a CBS spokesperson told TorrentFreak.
