Tuesday, August 08, 2006

RIAA v. LimeWire

Here is a link to the complaint filed against LimeWire on August 4th in the SDNY. The case has been assigned to Judge Gerard Lynch, a extremely smart, liberal jurist. The record company plaintiffs are represented by Cravath, with Kathleen Forrest in the lead. Ms. Forrest, who has been involved in these issues since at least the first Mp3.com case, is simply outstanding. I have always admired the extreme care with which she drafts her papers, and these are particularly well done. In addition to naming Lime Wire LLC and Lime Group LLC, the complaint names individually the company's CEO Mark Gorton and its CTO/COO Greg Bildson, an aggressive move on plaintiffs' part.

Among the points one can make about the complaint is the careful separating out of three distinct theories for liability: contributory infringement, vicarious liability, and the new Grokster inducement. Ms. Forrest's attention to detail is so refined that in making out the contributory infringement claim, she omits the word "inducement," even though, as noted below, it was, pre-Grokster, one of the trilogy of elements of a contributory infringement action. We are in a new era and this complaint reflects that era.

I happen to think the new era sucks, but it is here and we had best come to grips with it. The LimeWire case is likely to provide the inducement for that waking up. Aside from what I regard as the Supreme Court's insitutional irresponsibility, my objection to the Grokster opinion (which is not a defense of Grokster the company), is that it only added to the conceptual morass begun with Sony by creating a new, third category of third-party liability, and without any perceived need for it by the parties, Congress, or anyone else. It was, I believe, merely a way to paper over the court's inability to do the job it took upon itself: determine how to apply Sony to the Internet. When the Court shirked that responsbility, it apparently felt it too had to something to show it was tough on pirates (you're not alone Mr. Attorney General!), hence the inducement theory.

This new inducement theory is not a species of vicarious liability or contributory infringement, although at one point Justice Souter’s "majority" opinion referred to contributory infringement: “One infringes contributorily by intentionally inducing or encouraging direct infringement … .” This passage evokes the classic formulation of contributory liability in copyright cases, pre-dating Sony: “[O]ne who with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” By contrast, the new inducement theory focuses on intent, as Justice Souter explained:

Sony’s rule limits imputing culpable intent as a matter of law from the characteristic or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.FN10 …Thus, where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability.

I regard the intent of this approach to be solely to eliminate the staple article of commerce defense available to contributory infringement, a defense the Court had itself judicially legislated into the Copyright Act in Sony, but apparently found inconvenient in Grokster. The Court’s sop to Sony in footnote 12 does not ameliorate this, and instead adds to Grokster’s conceptual illegitimacy:

FN12 Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

Sony surely intended that its machine be used for infringing purposes and took no steps to prevent those uses. Moreover, since intent is not an element of contributory infringement, it is baffling to see why it should play a role in carving out an exception from such infringement. But no matter, I would be surprised if Ms. Forrest does not argue that under Grokster, the staple article of doctrine doesn't apply, so forget about whether there are substantial noninfringing uses; their existence is irrelevant.

Of course (in the way the Supreme Court uses that phrase), plaintiffs in LimeWire have also pled contributory infringement so the issue will come into play there, but as Grokster shows, you only need one theory to win, and it can be a new one the Court makes up or impresses from another field of law: tag, you're it, you lose!

Grokster and the LimeWire complaint do raise important issues of inducement: how does the inducement in contributory infringement differ from the inducement in the new inducement theory: are they different, and if not, what does the new theory add (trick question, the answer is what it takes away:the staple article of commerce defense). And then there is "intent," one of Justice Souter's favorite words: what type of intent must be shown before the court will require defendant to take affirmative steps to prevent infringement under an inducement theory: is it an intent to facilitate infringement coupled with a design that doesn’t attempt to control infringement, or is it more like classic willfulness in both the intent to facilitate infringement and in designing a system that can’t control infringing uses? The majority made no effort to answer these important questions, perhaps because Footnote 12 was intended to be less a formulation of a legal principle and more a political concession to keep Justices Breyer, Stevens, and O’Connor on board for the majority opinion, while leaving them free to write their own concurring opinion that takes a different path.

A few other points about the LimeWire complaint. There is a common law, pre-1972 Naxos claim, and what seems to me a preempted claim for unfair competition. The prayer for relief discretely asks for "injunctive" relief, meaning permanent injunctive relief, since the complaint acknowledges LimeWire has been at it since 2000.


Anonymous said...

Is there any way to get ahold of Limewire without having to have had LimeWire Pro?

I had limewire basic. and when i went to uninstall it off my computer, it immeaditly crashed my computer and when i re installed Windows XP it says I have no modem
Anyone else have this problem??

Anonymous said...

It's actually Katherine Forrest, not Kathleen.

Anonymous said...

Is it just me or does it seem odd that the RIAA would assert LimeWire's liability under this new inducement theory? Wouldn't that be another hollow victory? If the RIAA could tag LimeWire under the Sony Rule, then they get a slam dunk on P2P programs/networks, right? Otherwise, the new inducement theory has to be asserted against every P2P company/program/network on a case by case basis. That's not what RIAA wanted in Grokster - they wanted to say with a broad brush that P2P networks are bad via Sony.

Anonymous said...

Why are you writing bloggs like this when you cant even spell correctly?.
I don't even know what a 'blogg' is but and I am half cut on red wine , but if you even want me to be a disciple of your teachings and beliefs then you better first at least learn to use English grammar if you want me to take what you say seriously.

Anonymous said...

Seriously, bands like Metallica cry poor over a few kids downloading some of their music. Multi-Million dollar homes, half a dozen $50,000 cars, everything is given to them for free so they will be seen wearing "these" clothes or playing "this" guitar. I work for a living. I work hard. I understand the value of entertainment but give me a break. I have a hard time getting by as it is. I have a college degree and I still had to make monthly payments on a used $3,000 vehicle just so I could afford my mortgage and utilities. Sometimes paying $200 so my son can go to day camp for a week strains my budget. A bunch of guys that party get discovered in a bar, i spend 4 years in college not partying and I'm the thief if I download music? $15 for a CD that usually only has a few decent tracks sounds more like thievery to me. Celebrities suck because they think they're entitled to more than what they're really worth. What about the guys at the Electric Company that work to make sure you can watch your 70" television or the lawn crew that slaves to make the landscaping of your 30 million dollar home that you don't even live in look good. Lawsuits against children that don't even understand what copyright infringement is....these are the people these children look up to. Pitiful.

Wang Cho said...

oh for crying out loud You dont have a $50000 car cause you cant afford it so it stands to reason that if $15 a cd is too expensive you shouldnt have it....you dont just go grab a porsche off the truck that is carrying it by your house

Anonymous said...

Stop listening to the trash that passes for music, stop watching the rubbish from Hollywood.

THAT will put RIAA out of business.....

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