Who is Responsible for Illegal P2P Downloading?

CNET, CBS Sued For Distributing LimeWire, Other P2P Clients

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Who is Responsible for Illegal P2P Downloading?
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Don’t hate the player, don’t hate the game – hate the messenger?

In the latest round of who-can-we-sue, disgruntled “victims” of file sharing have taken aim at CBS’s CNET, specifically their software downloading site cnet.download.com.

Entrepreneur, FilmOn Founder and “eccentric billionaire” Alki David has filed a lawsuit against CNET alleging that they aided in copyright infringement by distributing P2P clients, most notably LimeWire but also Morpheus, iMesh and FrostWire.  Of course, LimeWire is already in its own mess.

Joining Mr. David as plaintiffs are a number of rappers and R&B artists that include members of 2 Live Crew, Pretty Ricky and Ying Yang Twins.  Fifteen plaintiffs are listed in all.

Whose fault is copyright infringement, if anybody’s? Is it the person who shares the files, the makers of the client, or in this case do you agree that CNET shares some responsibility? Tell us what you think.

Part one of the argument is that CNET is guilty of copyright infringement because they allowed users to download software that was used for copyright infringement.

The CBS defendants have been the main distributor of Lime Wire software and have promoted this and other P2P systems in order to directly profit from wide-scale copyright infringement…the CBS Defendants’ business model has been so dependent upon P2P and file sharing applications that entire pages of Download.com are designed specifically to list and categorize these software offerings.

So, blame Dick’s Sporting Goods for selling the hockey stick that was used to bludgeon someone to death with.  Got it.  Maybe we should sue Google for providing search results linking to CNET.  Actually, let’s just sue the internet.  Let’s sue Al Gore.

All ranting aside, the fact remains that while CNET was distributing LimeWire, is was a legal product. Limewire does not inherently have to be used for “copyright infringement.” File sharing does not necessarily equal copyright infringement.  Of course, P2P clients are used for the sharing of copyrighted files – nobody can deny that.

But I simply don’t know if we should sue the tackle shop for selling the bobber used to snag and keep the fish from the catch-and-release pond. Should we?

But I digress.  The second part of the argument is that along with hosting downloads, CNET also wrote reviews for products like LimeWire, thus instructing users specifically how to break the law.

The CBS Defendants have not just distributed and profited from software applications used to infringe copyrights on a massive scale.  They also furnished articles and other content that explained how users could use P2P software to infringe.

On cnet.com, Download.com and other website, the CBS Defendants offered videos, articles and other media that instructed how to use P2P software to locate pirated copies of copyrighted works and remove electronic protections placed on digital music file sin order to prevent infringement.

Or as I call it, the Anarchist Cookbook argument.

Part 54 of the lawsuit provides my personal favorite complaint, simply for its leave-no-stone-unturned approach:

As part of their review process, the CBS Defendants tested the software that they reviewed and, in the case of P2P clients, infringed copyrights to do so.  In a video that Download.com posted to its website, the CBS Defendants again reviewed LimeWire, but this time demonstrated how it worked to Download.com users.  The message of the video is clear: LimeWire is really great at infringing copyrights.

The lawsuit seeks damages as well as an injunction barring CNET from offering P2P client downloads.

Here’s a video of Alki David ranting against CBS, thanks to Ars Technica.  David says that CBS “finds itself publicly exposed as an irresponsible hypocrite, that has ruined the lives of hundreds of thousands of people in the creative community and created copyright infringement damages into the trillions of dollars.”

“Hypocrite” is most likely a reference to past legal dealings between CBS and David’s site FilmOn. Last fall CBS along with Fox, NBC and ABC won a restraining order against U.K. based FilmOn in the U.S. The networks argued that because FilmOn was rebroadcasting their content over the internet, they were in violation of copyright law. Although the merits of Alki David’s lawsuit against CBS deserve a fair debate, it is not a stretch to see this current lawsuit as some sort of retaliation for previous actions.

CBS has responded to the lawsuit, saying:

“This latest move by Mr. David is a desperate attempt to distract copyright holders like us from continuing our rightful claims. His lawsuit against CBS affiliates is riddled with inaccuracies, and we are confident that we will prevail, just as we did in the injunction hearing involving his company.”

Also, does anyone see the awesome irony in Dentron Bendross of 2 Live Crew suing someone for copyright infringement, considering his group was part of one of the more famous fair use lawsuits ever?

Oh well.  It shouldn’t be too hard to discern where I land on the issue.  But what do you think? Let us know in the comments.

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  • http://www.seo-theory.com/ Michael Martinez

    You seem to be burying your head in the sand. If the local sporting goods store sells you a hockey stick knowing you intend to use that hockey stick to commit a crime, that store is engaging in seriously irresponsible behavior, so your analogy doesn’t work.

    Whether CNET and CBS can be held liable for aiding and abetting the illegal reproduction of copyrighted works remains to be seen, but this case sounds pretty strong on the surface. They are not in a position to plead they didn’t know what the software could or was widely being used for.

    Their one sliver of hope may be that they could not determine an individual downloader’s intent — but given how widespread the problem became, I suspect that won’t pass the ‘reasonable person’ test.

    • http://www.ientry.com/ Josh Wolford

      But the fact remains, that while they were distributing LimeWire, is was a legal product. Limewire does not inherently have to be used for “copyright infringement.” File sharing does not necessarily equal copyright infringement.

      Firearms sellers sell guns, knowing that there is a possibility that they will be used in a criminal act. We aren’t suing (successfully) WalMart for that.

      • Arty

        Limewire is intended for legal file sharing just as much as bongs are intended for tobacco use only.

        • http://www.ientry.com/ Josh Wolford

          True, but you can still sell them, right? :-)

        • http://www.seo-theory.com/ Michael Martinez

          For the record, bongs are illegal in some parts of the U.S.

          Mixing metaphors isn’t going to really resolve the issue. We’ll all have to wait to see what the courts decide.

          I agree that proving liability is a challenge, but as was noted below, Limewire has already lost the war.

          • Wrong

            “If the local sporting goods store sells you a hockey stick knowing you intend to use that hockey stick to commit a crime, that store is engaging in seriously irresponsible behavior, so your analogy doesn’t work.”

            Bad analogy. Sites on the internet has protection laws. The sites sued are protected by law. They are not the publisher, just a venue. It doesn’t matter if they knew the software was used for illegal downloading. The applications are used for legal downloading too. They don’t have to plead that they knew anything because they are protected by law. This case is weak and will go nowhere like many of these cases in the past.

          • http://www.webpronews.com/ Chris Richardson

            They are only illegal if you call them bongs. So yes, metaphors and semantics fit perfectly here.

        • http://yourfreegadgets.net John@Free Gadgets

          Definately agree! The internet doesn’t belong to anybody. Everyone can share anything!
          But even of they sue Cnet, I don’t think they have any financial problems!

  • Stupidscript

    As long as there are legitimate uses for products (guns, automobiles, and peanuts all kill people), it has been almost impossible to prove that the distributors of such products (gun stores, car dealerships, grocers) are complicit in illegal acts performed with those products.

    That being said, Limewire has already lost the argument about WHY the program exists, but it took a lengthy trial to prove that. Coming, after the fact, and claiming that the distributors somehow already knew what took the court many months to prove is a stretch.

    Whether bongs are actually sold for tobacco use is a whole ‘nother Oprah … but you cannot deny that their design belies that statement, and, contrarily, the P2P model does not inherently define a copyright infringement process.

  • So Ironic

    Look at the information coming out and it just gets stranger by the minute.

    CNET locked down nearly exclusive distribution deals with Limewire, Kazaa Morpheus, Grockster and most of the other notorious P2P clients.

    CNET published frequent tests with the software against known copyrighted songs. Of course, with Live Links right to the software downloads.

    All I can guess from this is you think kids and single moms should be the ones sued because they did the downloading? Like that single mom in Texas that appealed a 1.5 million dollar fine for downloading 24 songs. Look it up on Google.

    They had articles that even suggested the best methods for ” Breaking Copyright Laws Big-Time”

    And they offered paid versions of Limewire and others that were ad free. They had deals to get paid for each download.

    Why are people so supportive of the worlds largest Media conglomerate that is One of the six MPAA members through Paramount Pictures, yet it is the MPAA too that is during people for using the software an actual member distributed to them with the instructions to use it.

  • LongTimeObserver

    Hope they demanded a jury trial. Would enjoy seeing attorneys who cleared P2P software for redistribution rationalize their decisions — contrasting same with their DMCA attacks.

  • eelman

    No, I don’t believe CNET should be held liable to the RIAA for copyright infringement done by their customers.

    • http://www.bluebeaconinfosys.com Dashrath

      Ya, I am also agree with you

  • http://21stccsi.com Gordon

    Of course it is everyone’s right to sue. However, suing the distributor’s of P2P software, the P2P software creators and their companies is tantamount to an attempt at circumventing the 1st amendment to our Constitutuion. It has a chilling effect on freedom of communication and should be thrown out of court on that basis. The plaintiffs may perceive they are losing money to lost sales due to illegal transfers of their work – but are they really losing what they claim? They should be using the transfers as a metric as to the quality and popularity of their work and take advantage of that information. If the quality was that good, then sales of their published work will pick up because people will want to own a legitimate copy where the recording comes with other media that can be seen and touched and placed in a collection. As for the people committing the crime of illegal transfers – their conscience isn’t much deeper than their pockets, but the heavy fines and prison terms for those caught and prosecuted doesn’t seem to dissuade.

  • http://www.kujawy.com.pl Kujawy

    Generally its true – who helps to get files in an unauthorized way is guilty but the problem is more complicated because ones has to prove the bad intention as well.

  • Captain EO

    P2P actually helps promote the music business and helps the world move forward.If the music business really wants to make money,they should keep their stars off drugs and take them out on tour.

  • http://www.relevanceweb.com Robert Went

    Maybe they should sue the computer manufacturers, after all, it is the computers that store the illegal content. Maybe the electrical companies that make the power to run the computers? Oh, hold on, then there would be no more music…

  • http://thewebtaylor.co.uk WebPortsmouth

    The blame game is ridiculous! P2P Downloading has been a problem for years and will not go away any time soon. Yes you can blame the people that download illegally, yes you can blame the companies that build and distrubute the software that enable people to illegally download, but the problem will continue to exist.

    There must be other ways to tackle this other than just blame people.

  • http://matweller.com Mat Weller

    P2P downloading is only illegal in the first place because of an unreasonable law put in place to placate an industry who donates heavily to various campaigns. If it was really wrong to give away things you own my wife and I would be looking at lifetime in jail for giving away the coffee makers left over from our yard sale this weekend — not to mention the time we would do for actually selling things we owned [gasp! the horror!].

    What needs to happen is that the industry needs to come up with a business model that reflects true product value and then file sharing will be minimized again. Time and time again studies have shown that most people actually prefer to pay for things, but when companies charge $20 for a downloaded movie that users know cost the company less than $1 per piece to create, produce, promote and deliver, the end user is inclined to either get it for free or do without it altogether. The closer price gets to true value — which, by the way in true capitalism is determined by the end user, not the provider — the less re-distribution will occur.

    Rather than embrace that and find ways to work with it, these companies get senator buddies to change the laws to favor them, and we take one more step toward becoming a corporate dictatorship rather than anything close to a capitalist democracy.

  • Arty

    Getting back to the question posed by the title, I’d say in short that we are ALL on an individual level responsible for our own actions. An individual has the choice to download or not download illegal media by way of P2P. That’s the simplest, most direct answer. Of course, the reality of things can never be defined so concisely. Factors outside of the individual will add weight to each choice they are presented with. In the case of illegal downloading, I would say societal norms are a huge factor.

    From Napster’s inception to today’s abundance of torrent sites, it has been unofficially accepted by the majority that file sharing (on and off line) is okay. The music industry was turned on its ear by the illegal sharing of mp3s and attempted to fight back with an army of lawyers. But did it work? Compare record sales from today to record sales ten years ago and you’ll see a major decline. So either people stopped paying for music or they continued to acquire it via P2P. Artists like Nine Inch Nails and Radiohead have essentially accepted this unofficial decision forced on them by the technology-empowered masses and moved on to alternate means of promotion/revenue.

    Does that make it right on an individual level? Heck no. It’s still stealing. But just try to recalibrate the collective moral compass and see how far you get.

    • http://matweller.com Mat Weller

      “Compare record sales from today to record sales ten years ago and you’ll see a major decline. So either people stopped paying for music or they continued to acquire it via P2P.”

      Physical album sales have declined, music sales have risen dramatically because there is now a widely available, legal way to procure MP3s as opposed to physical media. When Napster was at it’s most widely used, there was no other real way to get MP3s–proving my point exactly. People want to do the right thing, just give them a way at a value the market will bear.

      • Arty

        It’s true, legal mp3 downloads have risen. But that doesn’t mean music sales “have risen dramatically.” example 1: http://www.npr.org/blogs/money/2010/08/25/129428450/album-sales-hit-record-lows
        example 2: http://www.guardian.co.uk/business/2011/jan/05/album-sales-plummet-sixth-year-running

        • http://matweller.com Mat Weller

          You’re right, but you’ll also notice that the most alarming of those stats compare whole album sales only and not single song purchases. Whole album sales are indeed down, but you can’t tell me people are buying fewer individual songs than CD singles.

          Also, those stats are based on sales, not profits. When your costs from recording-to-sale go from $5 per album to $1 or less, You can sell significantly less and profit exponentially more.

          Over a year ago, Apple declared that it sold it’s 10 billionth song since 2003 when it opened the iTunes store. At a buck each, that’s $10,000,000,000 from Apple alone in 7 years.

          You’ll forgive me if I hold my tears for a bit.

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