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 platform, while its 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 P2P technologies.
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.

Reader Comments (rss)

(Flattened / Threaded)

  • icon
    GMacGuffin (profile), Feb 20th, 2013 @ 10:04am

    Yeah, but...

    Of course, the case is far from over.

    ... but failing at the outset to show a likelihood of prevailing on the merits is a pretty good barometer of things to come. You can be they shot their wad on this motion, as it would be foolhardy not to. Oh, wait...

    reply to this | link to this | view in chronology ]

  • icon
    gorehound (profile), Feb 20th, 2013 @ 10:37am

    I should google a list up of the "Artists" .
    I am an Artist and I share all my Art via Direct Downloads and thru TPB, ETC.
    All can use and share my Art freely.
    Archives of Jordan has tons of free stuff from 1976 - present times.

    reply to this | link to this | view in chronology ]

  • icon
    Wally (profile), Feb 20th, 2013 @ 10:45am

    Does anyone reading this article realize that the real reason that the court sided with CNet is based on their legitimate use of the BitTorrent system? I mean I really don't mean to be a Bob here, nor an OOTB, but it seems to me that it's more viable to believe that the court system actually recognized legitimate use.

    I mean really, the court recognized that CNet uses bit torrent to distribute its content. They aren't that stupid any more.

    DMCA Article 17 §512, paragraphs M, O, T, U, V, and X cover the legitimate uses of P2P networks concerning content distribution. The judge recognized it and stated there was no evidence of infringement nor willful infringement by CNet, and no evidence of plans for willful infringement.

    It's cut and dry. Hence no need for public discussion on it.

    reply to this | link to this | view in chronology ]

    • icon
      Rikuo (profile), Feb 20th, 2013 @ 11:17am


      Let's hope that this ruling becomes precedent (it can, can't it?), so that the copyright maximilists can be told to shut up whenever they run around screaming about the Piratebay and other sites.

      reply to this | link to this | view in chronology ]

  • icon
    Baldaur Regis (profile), Feb 20th, 2013 @ 11:55am

    GodDAMN the inconvenient fact that P2P can be used for non-infringing purposes. It's much like the argument that the internet can be used for something other than porn.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, Feb 20th, 2013 @ 12:12pm


      You can?

      (I consider this website pornographic, but only because of aspersions caste about Dark Helmut in a less than dressed state of being creating images not becoming).


      reply to this | link to this | view in chronology ]

  • icon
    Overcast (profile), Feb 20th, 2013 @ 11:59am

    "I'd say predicting the result of a lawsuit in the US is like gambling. Regardless of how obvious the decision should be."

    Yeah, it's because ruling's rarely have much to do with 'law' - and more to do with who has the largest pile of cash to throw at it.

    So basically; you'd be betting on resources on each side.

    I wonder if bookies take bets on these?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, Feb 20th, 2013 @ 12:37pm

    as good as this decision is and the fact that if it carry's on in the same vein, just means there will be countless appeals until the verdict wanted by Alki David is given. he has plenty of time and money to waste on this stuff.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, Feb 20th, 2013 @ 1:59pm

    This suggests that Plaintiffs’ goal goes far beyond stopping actual infringement by Defendants and extends instead to silencing public discussion of P2P technologies.

    Sounds like SLAP to me.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, Feb 21st, 2013 @ 5:11am

    A suggestion regarding ordering

    Could you please put comments on a quote after the quote? Reading the commentary before the quote will most likely bias ones interpretation of the quote more then reading the commentary afterwards.

    reply to this | link to this | view in chronology ]

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