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The Copyright Ties that Bind: Media Entrepreneur Turns Tables on CBS/CNET in Infringement Suit
(Photo courtesy of Creative Common’s user colm.mccullan)
Dozens of musicians are taking a stand against CBS Interactive Inc. and its subsidiary, CNET Networks Inc., for distributing software that enables peer-to-peer file sharing. Interestingly, Alkiviades David, who was the defendant in a 2010 case brought on by CBS, ABC, NBC and Fox Broadcasting against his video streaming site, FilmOn, is leading the battle.
On its Download.com domain, CNET has long distributed freeware, shareware and trial versions of payware software to the public. In this suit, David and his co-plaintiffs seek to hold CNET liable for the fact that some of the software—which enables peer-to-peer file sharing—may be used by downloaders to infringe copyright law. But David’s case does not merely rest on CNET’s distribution of the enabling software. Instead, the plaintiffs contend that CNET actively induces infringement of copyright in a variety of additional ways. For example, there is an entire platform on CNET’s site dedicated to “P2P & File-Sharing Software” and the site provides how-to guides, reference material and tutorials for using the distributed software to ultimately download copies of copyrighted works without authorization of or payment to the copyright holders. In short, the plaintiffs seek to expand the secondary liability theory of inducement—first announced in the Supreme Court’s decision in MGM v. Grokster (2005)—to encompass the CNET’s activities.
The case is particularly unusual in that, on July 13, the United States District Court for the Central District of California just granted the defendants’ motion to dismiss plaintiffs’ claims of contributory and vicarious infringement for failure to state a claim upon which relief could be granted. But, the court refused to dismiss the claim for inducing infringement. As such, the decision appears to represent the first time where a court has considered inducement as a separate theory of secondary liability, not merely a subset of contributory infringement. As law professor and technology blogger Eric Goldman has written, the decision also seems to set up novel claims for tertiary liability—”where the software users are (in theory) the infringers, the P2P software manufacturers are the secondary infringers, and Download.com is a tertiary infringer by supporting the secondary infringer who supports the direct infringer.”
This decision could trigger new waves of lawsuits that explore issues of interrated culpability among software companies, distributors, online platforms, and their owners. The ruling also provides further caution to technology companies to take great care in the shaping of their editorial content and marketing materials.