In 2011, Alki David, the billionaire behind the FilmOn video service, declared war on CNET and its owner CBS.
The artists claim that CNET profits heavily from distributing file-sharing software via Download.com, while demonstrating in editorial reviews how these applications 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.
After a judge ruled last summer that inducement of copyright infringement could indeed be considered due to Download.com also distributing the software they reviewed, the artists moved forward. Last November they asked the court to issue a sweeping injunction, one that would ban all BitTorrent client downloads from the popular software download portal Download.com.
Last month CBS and CNET responded to the proposed preliminary injunction, asking the court to deny the plaintiff’s request. The companies used a wide variety of arguments to back up their motion, and noted that the artists can’t prove that software distributed by Download.com can be traced back to specific infringements.
However, in a new filing the artists wave these arguments away. The plaintiffs argue that direct infringement doesn’t have to be proven according to the established file-sharing doctrine including the Grokster and LimeWire cases.
“Because CBSI distributed several torrent software programs and encouraged infringement on torrent networks, CBSI is liable for all infringement on the torrent network,” the plaintiffs write.
“The fact that other entities such as the torrent publisher or a torrent website like the Pirate Bay might be jointly and severally liable for this infringement does not affect CBSI’s inducement.”
The artists further contend CBS and CNET’s argument that BitTorrent is also used to distribute legal content. They note that the legal use of BitTorrent is irrelevant and are confident that they can prove that CBS and CNET intended to induce infringement.
Among other things, the artists point to a video tutorial where CNET editors show how Nine Inch Nail’s complete discography can be downloaded.
“The video demonstrates how to use uTorrent to find a torrent file capable of downloading all of Nine Inch Nails musical catalog in one fell swoop. Significant portions of Nine Inch Nails discography, of course, are protected by copyright,” they write.
The artists further refute the argument that the creators of the software are ultimately responsible for potential infringements.
“CBSI does not deny having commercial relationships with peer-to-peer software publishers or profiting in some way from its distribution of P2P software. CBSI’s suggestion that only the creator of P2P software is liable for inducement completely ignores Grokster.”
“Following CBSI’s logic, a third-party entity like CBSI could freely promote copyright infringement while avoiding all liability simply because its users linked to another website to obtain the software. That is not the law,” the filing reads.
A loss for CBS and CNET doesn’t automatically mean that file-sharing may be help liable for infringements. Alki David told TorrentFreak previously that software makers have little to fear as long as they don’t promote copyright infringement.
“I do NOT think that torrent makers should be held liable. They can distribute but not promote the illegal use of their software. Herein lies the problem. You cannot sell guns and tell people the best way to use them to kill people,” David told us.
Having heard both sides of the argument, the District Court now has to decide whether or not CNET will be banned from distributing BitTorrent software and other file-sharing clients.