According to the 2009 edition of “Communication and the Law”, after Metro Goldwyn-Mayer Studios Inc., et al. v. Grokster, Lts., 545 U.S. 913, 918-19 (2005). also know as MGM Studios v. Grokster, the Court suggested that when “a widely shared product” is suspected of infringement, it’s unrealistic to go after every single person directly who has used or is using the software or program. So, the next best option is to sue the distributor for contributory or vicarious infringement. According to the Supreme Court contributory infringement is when the distributor “intentionally induces or encourages direct infringement” (155). Vicarious infringement suggests that the distributor is profiting from the direct infringement while refusing to “stop or limit it”.
So what does this court decision have to do with anything? Well a couple of weeks ago we covered the copyright infringement of file sharing services. Although many cases involving the Recording Industry Association America (RIAA) were discussed in class, there was one P2P service that wasn’t mentioned. It’s one that I consider to be one of the most popular file sharing services, LimeWire. We’ve all either used it or at least heard of it; but how has a peer-to-peer giant such as LimeWire continue to run? Has this service found a way to escape copyright infringement? Well, it has an interesting case.
Like other P2P services such as Bearshare and WinMx, LimeWire received the “cease and desist” letters in 2005 from the RIAA asking it to "...immediately cease-and-desist from enabling and inducing the infringement of RIAA member sound recordings”. Unlike Bearshare and WinMx, LimeWire didn’t cease or desist, it instead put word out that it would install a copyright filter to block illegal files. As time passed, new user friendly features surfaced but no copyright filter. Then the RIAA sued.
In 2006, The RIAA sued Lime Group, LLC (the company that LimeWire belongs to), LimeWire, LLC, the CEO Mark Gorton and the CTO Greg Bildson. For the first since MGM studios v. Grokster, the RIAA also sued for “inducing direct infringement”. Meaning, LimeWire was sued for encouraging its users to share or download illegal files. The file sharing service was also sued for vicarious infringement and common law infringement.
LimeWire continued to set itself apart, as it wasn’t going down without a fight. First, LimeWire tried to reason with the RIAA and become a licensed music service but the RIAA declined and suggested that it use a filtering service approved by the record labels, or join forces with the P2P file sharing service iMesh. LimeWire didn’t like either suggestion so in 2006 LimeWire’s CEO and CTO filed a countersuit against the RIAA in Arista Records LLC v. Lime Group LLC. 532 F. Supp. 2d 556. (S.D.N.Y 2007). They claimed that the record industry group “conspired to restrain trade and monopolize the market for the distribution of copyrighted sound recordings over the internet” In other words, LimeWire was accusing the RIAA of trying to put them out of business. The P2P giant also denied the RIAA’s allegations against them in the counterclaim.
Unfortunately, LimeWire accusations against the RIAA didn’t hold weight, as U.S. District Judge Gerard E. Lynch in New York tossed out the counterclaim in December 2007 and disallowed the case to continue in state court. He said that LimeWire failed to prove that the RIAA had any ulterior motives aimed at putting them out of business, and that the RIAA’s actions were “independent decisions”.
With the counterclaim out the window, attention turned back towards the first lawsuit against LimeWire. As of now, this is case is still pending but LimeWire has added some disclaimer information to it's website. In fact it has a copyright page that gives users warnings about “downloading unlawful material” and notifies them about the repercussions of taking part in copyright infringement. There is also an interesting line that says “LimeWire is not responsible for the content on the P2P network and does not monitor it”.
Perhaps, the disclaimer will work in LimeWire’s favor when a decision is finally made by the court. However, the file sharing service’s refusal to give up their assets to the RIAA and their decision to countersue them was bold and should be appreciated. Yes, it didn’t work out for LimeWire in court but at least they tried. If anything, it was a smart move as they’ve bought themselves more time and if you haven’t noticed LimeWire is still up and running!
LimeWire Counter-claim: http://www.lexisnexis.com.libproxy.temple.edu/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T9269642569&homeCsi=6323&A=0.3105255992679483&urlEnc=ISO-8859-1&&citeString=532%20F.%20Supp.%202d%20556&countryCode=USA
LimeWire official website: http://www.LimeWire.com/legal/copyright