Inducement, thy name is Limewire.
So now – almost five years after the U.S. Supreme Court ruled in June 2005 (in the MGM vs. Grokster case) that purveyors of file-trading software could be held liable for “inducing” copyright infringement – a district court ruling in a suit between the Recording Industry Association of America (RIAA) and Limewire gives the content and technology industries an example of what inducement means.
In 2005, I published a Gartner note on the Supreme Court’s decision, “In the majority opinion, then-Justice David Souter wrote, ‘We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement.’” I went on to note that technology and companies considering the development of online content services would have to pay attention to see how courts defined “inducement.”
So now we know. But the Limewire decision, issued Tuesday, doesn’t end the case – a conference is scheduled for June 1 to figure out how the case will proceed.
What happened was that the appeals judge (Judge Kimba Wood, one time nominee for U.S. Attorney General’s position under President Bill Clinton, by the way) granted the RIAA’s motion for summary judgement that the industry group had proven that Limewire system induced infringement, benefitted from it, knew about it and didn’t do much if anything to stop it.
While the importance of getting a precedent for what “inducing” copyright is, in the eyes of U.S. legal system, for those who watch these issues closely, I focused on the judge’s ruling on Limewire’s claim that there are substantial non-infringing uses of the Limewire software and the P2P protocols it uses.
Limewire attempted what is sometimes referred to as the Sony-Betamax defense against the RIAA’s accusation that its system enabled “vicarious copyright infringement” (meaning that the evidence indicates Limewire was profiting from direct infringement and did nothing to stop it), but the judge did not buy it. She swatted it away like an annoying fruit fly buzzing around her head. In fact, she seemed to go out of her way to note that Limewire knew infringement was occurring and took no effective steps to stop it. What caught my eye in this part of the ruling, however, was the judge’s language that “…the record does not support a finding that LimeWire is capable of substantial noninfringing uses.”
This is crucial for the future of any sort of content distribution system that is based on distributed computing or peer-sharing.
I wouldn’t say the door was close to “substantial non-infringing uses” of P2P architectures. I would say that if somebody is thinking about using those technologies for licensed content distribution systems, tracking and enforcing copyright is going to keep you from getting swatted.
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