FilmOn quickly got in trouble once it started broadcasting the programming of U.S. TV networks over the internet. As he began losing his court case, FilmOn founder Alki David created a bizarre video rant accusing CBS (NYSE: CBS) of “manipulating the minds of the youth” and distributing illegal software through its download site on its subsidiary CNET. Now David has followed through on a threat he’s been making since December—he’s hired a top Silicon Valley law firm to file a class-action lawsuit against CBS and CNET over their distribution of the now-disabled Limewire file-sharing software.
What does CBS’ ownership of Download.com have to do with its dispute with FilmOn? On the face of it, not much. But since his lawsuit against the TV networks floundered, David has seemed particularly obsessed with CBS, which he has accused of being run by “thieving, hypocritical liars.”
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A CBS spokeswoman responded to David’s suit by noting CBS’ win in the FilmOn case last year, and added: “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.”
Limewire, for those who don’t know, was one of the most popular peer-to-peer file-sharing systems from about 2006 until it was shut down by court order late last year, after it was found liable for encouraging users to break copyright law. (Perhaps not coincidentally, a jury trial began yesterday which will determine how much money Limewire has to pay to record labels.)
Alki, who is an actor, has joined together with a group of artists, mainly RB and hip hop musicians, to file this lawsuit against Limewire. But they didn’t stop there; they’re also suing CNET and its parent company CBS, saying that CNET’s Download.com site must bear some responsibility, as the main distributor of Limewire, a piece of software that was ruled illegal by a federal judge last year. According to Alki’s lawsuit, more than 220 million internet users acquired Limewire from Download.com, representing more than 95 percent of all copies of Limewire in use worldwide. CNET makes money from Download.com both through advertising and also by offering “Premium” accounts to some software publishers.
The idea of creating an artist-driven pile-on to Limewire might be effective; after all, publishing companies already did that and quickly scored a settlement. But dragging CBS and CNET into the Limewire mess just for distributing the software seems like a much higher hurdle. The thing is, peer-to-peer distribution is simply a very efficient method of moving data; and file-sharing software has many perfectly legal uses. Limewire only “became” illegal after a judge reviewed the evidence, and found that the company running Limewire had done a variety of things that actually encouraged users to break copyright laws. (The legal term here is “inducement.”)
Some of the points raised about CNET’s involvement in distributing Limewire:
» The lawsuit at least implies that CNET had direct involvement in developing Limewire’s most copyright-infringing features. The lawsuit claims, without providing much detail, that “for each version of Limewire, for example, Download.com staff corresponded with the Limewire Defendants’ representatives regarding the features in the client program.” If CNET staffers were actually asking Limewire for features that had the specific purpose of making it easier to break copyright law, that could be a real problem; but if Alki and his lawyers have evidence like that, it isn’t in this complaint.
» The lawsuit claims that CNET editors performed speed tests to see how effective Limewire’s software was, and downloaded copyrighted material as part of that speed test. The lawsuit describes a CNET video review this way: “As the viewer looks at the screen demonstrating a sample search, they see a list of copyrighted works, including those from several well-known musical artists. In the same video, Defendants admit that they downloaded files generated by these searches to test the speeds that Limewire could deliver for users.” But unless the downloads by CNET editors were files actually copyrighted by the plaintiffs in this suit, it’s hard to see how this matters much; remember, Limewire will already have to pay record labels as a result of the damages trial going on this week.
» Other gripes are basically with how CNET handled editorial on the site. FOr example, it gave the Limewire software four and a half stars out of five; it continues to provide access to software like FrostWire, which one CNET user described as “practically indistinguishable” from LimeWire; and the CNET editor who wrote the Limewire review stated that peer-to-peer software “is primarily used for copyright infringement.” But complaints like this raise a free speech problem—CNET and other news outlets do need to be able to talk about software, even if it is illegal software.
Alki David, et al v. CBS Interactive, CNET, Lime Wire and Lime Group
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