Silly Lawsuit Filed Against CBS Because Subsidiary CNET Offered Limewire For Download

from the fourth-party-liability? dept

Late last year, a guy named Alki David, who's known for his publicity stunts, put out a silly video attacking CBS, who was suing a company he ran. The video is long, and not very entertaining, other than demonstrating David's ego. The theory posited by David is so bizarre that we didn't post about the video when it came out. Basically, CBS had sued his company, FilmOn, which let people pay to access his retransmission of TV channels online. It's pretty easy to see why CBS and others believe that a service like FilmOn is infringing. However, David's theory was so out there that it was laughable: he claims CBS is suing him because CBS profits from piracy and doesn't want others getting into the game and competing. No, really. You can see the video here:
The logical trainwreck comes from the fact that CBS bought CNET a few years ago, and among CNET's properties is Download.com, which is probably the single most popular place for companies to offer up their software products for download. It's been that way for years. One of the many, many, many software products available to download from Download.com was Limewire, which (as you know) was recently found guilty of facilitating copyright infringement. David's argument is that CBS makes a ton of money from this setup. It doesn't. CBS may make a little bit of money from this, but it's not even a rounding error on CBS's bottom line. This is so far removed from CBS's business it's hard to do more than laugh at the accusations.

However, David has now taken it to another level, and together with some hip hop and R&B artists, is suing CBS for copyright infringement over this same issue. It seems pretty clear that this is a nuisance suit from David, who is upset about the lawsuits against his company -- which seem to have a lot stronger basis in law. I can't see how CBS has liability here. We're not even talking about standard third party liability here. CBS is a fourth or fifth party here, at best. The actual infringement comes from end users. Limewire is the tool they use. CBS's CNET's Download.com is the tool that Limewire uses. To blame CBS for that is a huge stretch. Also, unless I'm missing it, nowhere in the lawsuit filing embedded below do I see what specific copyrights of the plaintiffs CBS is accused of infringing upon...


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    angelwolf71885 (profile), May 4th, 2011 @ 4:55pm

    mike mozart

    i really hope that REDSTONE and the RIAA&MPAA gets taken down over this; mike mozart the fail toy guy also has a live show on blogtv and youtube live just search jeepersmedia

     

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  2.  
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    Capitalist Lion Tamer (profile), May 4th, 2011 @ 5:13pm

    Bizarre.

    I'm not sure what bringing a contingent of local rap artists as co-defendants is supposed to do for this case. Are they supposed to be representative of "artists who work in the fields of music and film?"

    My hope is that they are there to be hype men, which would make this case briefly entertaining before it gets tossed out on its ass by an annoyed judge.

     

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  3.  
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    Anonymous Coward, May 4th, 2011 @ 5:15pm

    What's interesting to me is how did he convince some random r&b & rap artists to hop on this lawsuit? It's beyond bizarre.

    Pretty Ricky? Ying Yang Twins? Could it be because we haven't heard a record from these guys in years?

     

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  4.  
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    Jay (profile), May 4th, 2011 @ 8:09pm

    Comments

    Oh I get it...

    The Youtube comments are filtered so you can't put anything about how illogical his thoughts are. Bravo on not letting people say anything that isn't authorized there, David.

     

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  5.  
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    Ted E. Bear, May 4th, 2011 @ 8:55pm

    Irony

    Definition of Irony: A group of Hip Hop and Rap artists suing for infringement. Ummm your honor please disregard all of the sampling and rip offs of other songs and artists we used. We did it to make money. CBS just bought the company that had a site that put up a bunch of downloads. Ya ain't much of a gangsta if ya got ta sue. fool

     

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  6.  
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    FUDbuster (profile), May 5th, 2011 @ 7:00am

    Umm, no. This is third-party liability. (1) CNET, (2) the direct infringers, and (3) the plaintiffs.

    There's three claims: inducement, contributory, and vicarious infringement. The defendant allegedly uploaded 220,000,000 copies of the Limewire software.

    Funny how you say the lawsuit is "silly," yet you don't really address the claims in the complaint.

     

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  7.  
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    Karl (profile), May 5th, 2011 @ 7:54am

    Re:

    Umm, no. This is third-party liability. (1) CNET, (2) the direct infringers, and (3) the plaintiffs.

    Umm, no. The first and second parties are the users who uploaded and downloaded infringing content. Limewire itself is the third party. CNet would be a fourth party.

     

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  8.  
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    Mike Masnick (profile), May 5th, 2011 @ 9:21am

    Re:

    FUDspreader, once again, Karl has it right and you have it wrong. Of course, you'll mock both of us again.

    But, how about law professor Eric Goldman. He made the same point (http://twitter.com/#!/ericgoldman/status/65897545754353664).

    Perhaps he's too stupid to understand the law too?

     

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  9.  
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    FUDbuster (profile), May 5th, 2011 @ 9:44am

    Re: Re:

    I refuse to even read Karl's posts, so I have no idea what Karl said.

    Prof. Goldman put a question mark, meaning he's questioning it, not making a definitive statement about it. I think they are a third-party because they are distributing the software. You may disagree. Prof. Goldman may disagree. I'm entitled to my own opinion.

    Why can't I express an opinion that differs from yours without being met with your incredible hostility? Do I threaten you that much?

    Nevertheless, you still haven't explained why the lawsuit is "silly." That's the real issue here. If CNET knew the software was being used to infringe, which the complaint suggests they did, then the claim isn't that silly after all. Is it that unreasonable to hold a party liable who helped disseminate 220 million copies of software they knew was being used to commit infringement? I don't think it's necessarily so silly.

    You seem to default to lawsuit = silly, so it's no surprise that you think this is silly. I'm just wondering if you can back up the "silly" claim with some sort of legal argument.

     

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  10.  
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    Mike Masnick (profile), May 5th, 2011 @ 9:51am

    Re: Re: Re:

    I refuse to even read Karl's posts, so I have no idea what Karl said.


    So childish.

    Prof. Goldman put a question mark, meaning he's questioning it, not making a definitive statement about it. I think they are a third-party because they are distributing the software. You may disagree. Prof. Goldman may disagree. I'm entitled to my own opinion.

    I never said you're not entitled to your own opinion. I'm just pointing out that, contrary to your attempts to portray my position as being ridiculous, plenty of people who understand the law better than you agree.

    Why can't I express an opinion that differs from yours without being met with your incredible hostility? Do I threaten you that much?

    Dude. You've been posting on this site for a few months now, and early on we were happy to treat you nicely. Then you became a total and complete childish asshole. Any time people disagree with you, you talk down to them, you mock them mercilessly and you insist they simply don't understand.

    If we treat you you like that, it's only because you've earned it.

    You don't threaten shit. You're target practice.

    Nevertheless, you still haven't explained why the lawsuit is "silly."

    The entire post explains why it is silly. Your inability to read is really not my problem.

    You seem to default to lawsuit = silly, so it's no surprise that you think this is silly. I'm just wondering if you can back up the "silly" claim with some sort of legal argument

    No. Please refrain from making false statements about my beliefs. It's childish.

    I also find it funny that in a comment discussing one of the legal reasons we explained why this lawsuit is silly, you pretend I did not explain it.

    Your failure at reading comprehension does not obligate me to repeat myself. Anyone is free to read my post.

     

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  11.  
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    FUDbuster (profile), May 5th, 2011 @ 9:56am

    Re: Re:

    The holding of Grokster is summarized in the reporter as such: "[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

    So party one is the distributor of the software (CNET and Limewire, who is also a defendant by the way), party two is the infringer, and party three is the copyright holder. In my opinion, the fact that Limewire made the software is irrelevant. The issue is that CNET distributed it. I don't see how CNET can avoid liability by arguing that their liability is tertiary instead of secondary, so the whole argument seems moot to me anyway.

    Do you agree?

     

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  12.  
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    FUDbuster (profile), May 5th, 2011 @ 10:03am

    Re: Re: Re: Re:

    I never said you're not entitled to your own opinion. I'm just pointing out that, contrary to your attempts to portray my position as being ridiculous, plenty of people who understand the law better than you agree.

    I think it's secondary liability. Others disagree. You point to Goldman's tweet that ends with a question mark and pretend like it's proof-positive of the issue. It's amusing. You still haven't addressed the issue of why the suit is silly.

    Dude. You've been posting on this site for a few months now, and early on we were happy to treat you nicely. Then you became a total and complete childish asshole. Any time people disagree with you, you talk down to them, you mock them mercilessly and you insist they simply don't understand. If we treat you you like that, it's only because you've earned it. You don't threaten shit. You're target practice.

    How did I earn it in this thread? I merely stated an opinion without making it personal. You swooped in and started the hostility. I honestly think you hate that I call you out with such ease when it comes to substantive law.

    The entire post explains why it is silly. Your inability to read is really not my problem.

    Silly as in frivolous? Your post left me with many questions, but no answers. Shall we run through the claims in the complaint? You've given no analysis, just conclusory statements and innuendo.

    No. Please refrain from making false statements about my beliefs. It's childish. I also find it funny that in a comment discussing one of the legal reasons we explained why this lawsuit is silly, you pretend I did not explain it. Your failure at reading comprehension does not obligate me to repeat myself. Anyone is free to read my post.

    Again, you resort to personal attacks and deflection. Anything but talk about the substance. Let's stay focused. Why isn't this inducement, contributory, or vicarious infringement? Can you talk about substantive matters, rather than talking about talking about it? That would be more productive than what you've turned this thread into.

     

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  13.  
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    Mike Masnick (profile), May 5th, 2011 @ 10:23am

    Re: Re: Re:

    The holding of Grokster is summarized in the reporter as such: "[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

    CNET's actions clearly do not rise to the Grokster standard of inducement. The object of promoting it was not to promote infringement. It did not take active affirmative steps to foster infringement.

    As you well know, the court said that mere knowledge of infringement is not inducement and (more importantly) "ordinary acts incident to product distribution," do not create inducement.

    CNET did not induce infringement in any way. It's merely a host of the software in question. And it IS a tertiary liability issue.

    You claim that Goldman does not believe his position because of the question mark. You are wrong. Professor Goldman used the question market to make the point that this seems silly. I recognize that you might not know Professor Goldman and his writing style, but I do, and it's pretty clear what he meant.

    So party one is the distributor of the software (CNET and Limewire, who is also a defendant by the way), party two is the infringer, and party three is the copyright holder. In my opinion, the fact that Limewire made the software is irrelevant. The issue is that CNET distributed it. I don't see how CNET can avoid liability by arguing that their liability is tertiary instead of secondary, so the whole argument seems moot to me anyway.

    Limewire is the distributor of the software. CNET is a service provider who hosts the software. They are one step removed.

     

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  14.  
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    FUDbuster (profile), May 5th, 2011 @ 10:44am

    Re: Re: Re: Re:

    Thanks for the explanation.

    The complaint alleges that CNET was more than just a conduit, though. I don't know if the claims are true--and I'm not giving an opinion of the merits of the case--but I don't think it's quite as simple as that. As alleged, CNET was not a mere innocent party.

    Allegedly, CNET did make expressions as to how the software could be used to infringe, such as reviewing the software and comparing it to Napster. That could be inducement. As I recall, part of Grokster's downfall was their claim that they were the new Napster.

    It could be contributory infringement since CNET, allegedly, knew that it was being used to infringe and made a material contribution to that infringement by distributing millions of copies of the software.

    It could be also be vicarious infringement, since CNET allegedly profited (I'm sure the 220 million downloads, plus presumably more page views, earned them money), and they had a right and ability to control it (they could have not allowed the software to be distributed on their website).

    I don't think this is cut and dry either way. It depends on what actions CNET took what they knew.

     

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  15.  
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    Anonymous Coward, May 5th, 2011 @ 9:45pm

    Re: Re: Re: Re: Re:

    It's kind of amusing to watch you tie yourself into logical knots.

    For example, apply your logic to any torrent program.

    According to you, I can't host that program for download. I can't review that program and compare it to other torrent programs. I can't run ads on a page related to that program. Any of those actions would make me liable for users using a tool I didn't create to do things I didn't sanction.

    Of course, you'll rationalize with some form of "but obviously torrents are mostly used for piracy!"

    Then you're left with the silly situation where no new technology that happens to provide a better system for pirates can ever become legitimate. How is it supposed to become legitimate if every site that offers it for download is threatened with lawsuits? How is it supposed to become legitimate if every site that reviews it is threatened with lawsuits?

    Now, you clearly have no problem with this logic, since you repeat it over and over and over. Every time someone calls you out, though, you simply run and hide. Unsurprising, of course, given your history.

     

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  16.  
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    FUDbuster (profile), May 6th, 2011 @ 7:41am

    Re: Re: Re: Re: Re: Re:

    I'm not running and hiding from anything. I'm merely pointing out that the complaint alleges that CNET was more than just a mere conduit. Mike noticeably, and predictably I might add, completely glossed over the parts of the complaint where CNET is alleged to have done certain actions that could be considered as intentionally fostering piracy.

    I'm not turning this into some greater issue about new technology. I'm only saying that the lawsuit on its face is not "silly" to me. How did I tie myself into a logical knot? If CNET is saying download this, it's great, and you can use it to pirate, then that does open them up to liability under current copyright jurisprudence.

    You're need to try and take me down me down a notch over this is amusing.

     

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  17.  
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    Tom Burka, May 7th, 2011 @ 5:57pm

    CBS

    CBS's horde of lawyers will have lots of 'splaining to do. It won't be easy to defend their inconsistencies of known business practices as they relate to this case.

     

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  18.  
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    Anonymous Coward, May 8th, 2011 @ 7:30am

    Even torrentfreak doesn't go into "complete denial mode" as Mike does: http://torrentfreak.com/cnet%E2%80%99s-download-com-sued-over-limewire-downloads-110504/

    At least they're honest about what is being claimed in this case. Mike, on the other hand, makes no mention of CNET's alleged wrongdoings.

    Just like with Fung. How can we take you seriously? I'm sure you'll defend CNET no matter what evidence arises.

     

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  19.  
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    Davey, Jan 14th, 2013 @ 3:50pm

    This case is not of interest to me, except after the DISH censorship outrage, any enemy of CBS is my friend. More power to them, may their damage go off the meter.

     

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