Court Won't Block CNET From Offering BitTorrent Downloads: Not In The Public Interest To Stifle Public Discussion
from the there-we-go dept
We’ve talked before about rich guy Alki David’s “revenge” lawsuit against CBS for its lawsuit against his internet TV service. He and some musicians he’s convinced to join the lawsuit are alleging, ridiculously, that CBS should be liable for infringement itself, based on a convoluted copyright liability theory (and by “convoluted” we mean “totally bogus”) involving the fact that CNET, which is owned by CBS Interactive, offers downloads of file sharing software on its Download.com platform, while its News.com news and reviews site have published news stories and reviews about using file sharing software. Late last year, they took the case to another level seeking an injunction against all BitTorrent downloads from CBS Interactive sites.
CBS hit back, not surprisingly, arguing that it would interfere with CBS’s editorial mission, and that it would be against the public interest. Of course, this seemed more than a bit ironic, given CBS’s own interference with CNET’s editorial concerning copyright lawsuits that CBS is involved in. Last week, the artists tried again for an injunction, claiming incredibly that:
Because CBSI distributed several torrent software programs and encouraged infringement on torrent networks, CBSI is liable for all infringement on the torrent network.
Say what now? That’s not how the law works, and thankfully, the judge recognized that pretty quickly. Yesterday, the judge denied the injunction attempt with a fairly simple statement. The judge makes it pretty clear that merely knowing that BitTorrent software is used to infringe doesn’t make you liable for those infringements by offering the software for download. That’s just not how the law works. At all. The key bits are here (full thing embedded below):
Plaintiffs have not shown any likelihood that Defendants will be found liable for
their continuing activities. There is ample evidence of BitTorrent’s – and other P2P
software’s – ability to infringe copyrights and that a large number of individuals use the
software to infringe. Defendants are clearly aware of both of these facts. However, inducement of infringement requires more than just knowledge of actual or potential
infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913, 937
(2005). While there might be some evidence of past inducement of copyright
infringement, there is no evidence of any ongoing distribution of any file sharing
software “with the object of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement.”
In other words, the court properly recognized that this was yet another attempt to expand the ruling in the Grokster case which, while a bad ruling overall, laid out the rules for what is considered “inducement.” What CBS is doing is clearly not inducement. The court notes that even if an argument could be made that CBS “induced” infringement in the past (still unlikely) there needs to be at least some evidence that it might happen again if the court is going to issue an injunction.
The Court is well-aware that injunctions are often properly imposed where
allegedly wrongful conduct has ceased. However, there must be at least some evidence
that future infringement may occur. Here, Plaintiffs’ only solid evidence of possible
inducement comes from reviews that were published a decade ago…. The other articles cited by Plaintiffs merely discuss P2P issues, including
legitimate distribution through P2P, and the various technological and legal issues that
have emerged with the technologies. (See id., Ex. M, O, T, U, V, X.) The Court has no
reason to believe that Defendants will purposefully encourage copyright infringement
now or in the foreseeable future.
Finally, the court notes that such an injunction is “not in the public interest” and calls out David and the other plaintiffs for trying to “silence public discussion of P2P technologies.”
The nature of some of the supposedly problematic articles also demonstrates that
an injunction is not in the public interest. Most of the articles cited by Plaintiffs are
straightforward, legitimate news articles that do not in any way encourage or induce
copyright infringement. This suggests that Plaintiffs’ goal goes far beyond stopping
actual infringement by Defendants and extends instead to silencing public discussion of
Of course, the case is far from over. This was just looking at whether or not the court should issue an injunction to stop CBS Interactive from offering BitTorrent clients for download. There’s still plenty more to go before this ridiculous case hopefully ends up on the scrapheap.