By Mike Masnick
Last year, we wrote about a silly and uninformed lawsuit filed by eccentric rich guy Alki David against CBS. David has an online TV company, FilmOn, which has some similarities to Aereo and other online rebroadcasters. The networks sued the company, of course, and David has since gone on an odd and vindictive campaign against them.
As someone who tends to think services like his should be both legal and embraced, I’d like to support him, but his legal campaign is just ridiculous and now has the possibility of causing real and serious harm. His reason for suing CBS was that a few years ago CBS bought CNET, and CNET has (for many, many years) run a site called Download.com. Download.com is a service that many software providers use to distribute their software. David claimed that because Download.com (a site owned by CNET which was — only relatively recently — purchased by CBS) distributed Limewire — which was eventually found to be infringing — that CBS was also guilty of copyright infringement. That original lawsuit was dumped pretty quickly, after the judge noted that David had failed to show what copyrights were being infringed (a key piece in any copyright claim).
David regrouped and found a group of musicians to file a similar lawsuit — led by Sugar Hill Music — and so far that lawsuit has had slightly more success, though it has serious problems. The latest filing in the case, embedded below, involves the plaintiffs arguing that the court should issue an injunction blocking CNET/CBS from allowing any BitTorrent client from being downloaded. Yeah. The proposed injunction is full of complete crazy talk.
True to form, Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement. Defendants’ inducement has sometimes become somewhat more sophisticated and subtle, in that, for example, Defendants now include a mild, disingenuous disclaimer about piracy on some of their web-pages and evidently no longer host certain P2P applications on their servers. Defendants, however, still expressly and explicitly show users how to use bittorrent programs to find copyrighted files to download. At all times, Defendants were aware that the bittorent programs they distributed were used overwhelmingly for infringing copyrighted works – primarily music, software, movies and video games. Although some court cases have found the proprietors of torrent websites liable for secondary copyright infringement,3 no court case has yet directly involved bittorrent applications and technology itself. Like a leopard that cannot change its spots and despite this Court’s clear admonishment that Defendants cannot simultaneously distribute software applications that they have encouraged to be used for purposes of infringement,4 Defendants continue to distribute bittorrent applications under the intentionally lazy and under-reactive guise that they cannot be held liable for this activity until a court order specifically prohibits the use of bittorrent technology to infringe Plaintiffs’ works. Although Plaintiffs believe it probable that courts will soon explicitly find the popular bittorrent applications to be secondarily liable for copyright infringement just as Napster and LimeWire were, it is beyond doubt that Defendants’ distribution of these programs and concurrent intent to induce infringement subjects Defendants to inducement liability, independent of any further inquiry. Bittorrent is a clear and present danger to copyrighted works. From evidence readily available in CNET’s own “news” articles, it is clear that bittorrent applications like uTorrent are growing explosively to fill the infringement vacuum left by Gnutella applications.
Yes, despite the fact that BitTorrent itself has been around for many, many years, and the software/protocol has never been found to be infringing in any way, these musicians are now insisting that it’s “only a matter of time” and that CNET should be forced to block downloads of any and all BitTorrent products. There are so many crazy points here. First, Download.com is just a platform provider, which software providers use to distribute software, not the creator of the software. Second, BitTorrent is just a protocol and is quite different than the apps that the lawsuit relies on as previous generations, which were often complete ecosystems. BitTorrent software has always been just about a tool to download or distribute content — legal or infringing. And, yes, there are a ton of legal uses of BitTorrent, even if the plaintiffs here pretend otherwise.
There are some other howlers as well, including the rise of copyright trolls, filing over 250,000 lawsuits against people for copyright infringement — which the filing here uses as some sort of weird evidence that BitTorrent must be illegal, apparently completely unable to distinguish between a tool and the actions that some use that tool to accomplish.
Even more bizarre, the filing uses the fact that CNET had an article highlighting a legal use of BitTorrent (by the band Counting Crows who purposely released some tracks via BitTorrent) as evidence that CNET encourages people to infringe:
Defendants also use the purported “news” arms of their websites to dress up the marketing of bittorrent applications as legitimate news reporting. For example, CNET editor Seth Rosenblatt (the same individual who authored the fivestar review of uTorrent), wrote a May 14, 2012 article published and available on Defendants website titled “Download This Mr. Jones,” ostensibly about how the recording artist the Counting Crows had partnered with the software publisher of uTorrent to release their music for free download via torrent…. In a portion of the article quoting the lead singer of the Counting Crows regarding the 150 million users of uTorrent, Rosenblatt included hyperlinks accompanied by the word “download” to the CNET download pages for uTorrent and BitTorrent.
The idea that CNET’s news operation deserves sarcastic “quotes” around it is ridiculous. News.com has been one of, if not the, leading tech news publication for at least a decade and a half. And the idea that this story wasn’t actually newsworthy, as implied here, is simply ridiculous. Lots of publications covered it, not to push people to download BitTorrent, but because it was newsworthy. But much of the argument relies on news reporters talking about various issues related to BitTorrent, and then arguing that this is all some sort of front to push more people to download BitTorrent. To put it simply: this is insane. News.com and Download.com. I’ve known people associated with both properties, and the idea that they write articles about BitTorrent to try to drive more downloads is ridiculous.
But, even ignoring that, then arguing that all BitTorrent-related products should be barred from download isn’t just overkill, it’s pushing a rather scary and unique legal theory that sites should be barred from distributing software — made by parties not even represented in the lawsuit — just because one party doesn’t like how some of the users of that software use it. If there’s infringement it’s on the part of some potential end users, but rather than going after them, this lawsuit doesn’t just go one step back (to the software providers), but an even further level back to the platform that enables software downloads, and claiming that somehow they’re all responsible for this.
It seems pretty clear that this lawsuit is really designed to be a nuisance for CBS, but the legal theories are highly questionable and the requested injunction is a massive overreach. Hopefully the court recognizes just how much an overreach this request really is.