Intellectual Property Law

Will LimeWire go Legit or Belly-Up?

By Anthony Verna, Esq.

That it happened is no surprise.

The history of file-sharing lawsuits is an odd mix, however.

Here is a little history.

The first case on the subject is A&M Records, Inc. v. Napster, Inc. 239F.3d 1004 (9th Cir. 2001). The result is that the appeals court found that Napster infringes two of the copyright holders' rights: the right of reproduction and the right of distribution.

What I found odd about this case is that the court argues that "Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files." This seems to say that how Napster saved files on its system, via a search index system, was a part of copyright infringement. It is as if it left a door open for file-sharing programs to perform the same act in a different manner.

This was followed by Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 380 F.3d 1154 (2005). This case shut the door left open by the Napster case. Anyone who distributes a device (and device can be software) with the object of promoting its use to infringe copyrights is contributing to copyright infringement.

LimeWire fits that description. It is software and it is known as software to download music. The software is used often for that by many people every day.

With Grokster settling the rest of its lawsuit, one must wonder if peer-to-peer file sharing is dead. Most likely not. Others will appear (like Bittorrent - though that is a little different, since it is an algorithm for faster downloading and searching, and hasn't been advertised as a way to pass around copyrighted material, even though people do).

However, it appears as if all the doors are closed and there are no loopholes in peer-to-peer file sharing. The creators and owners of any software can be held responsible.

Full post as published by Trademark, Copyright and Entertainment Law Forum on August 08, 2006 (boomark / email).