Earlier this week, CNET and its parent company, CBS, were sued by a coalition of artists led by Alki David –-a film producer with along-standing vendetta against CBS – for “direct[ly] participat[ing] in massive copyright infringement.” The dispute, which arises from links posted to LimeWire and other peer-to-peer systems via CNET’s Download.com website, has the potential to shed additional light on the doctrine of secondary infringement liability. Specifically, the case will turn on whether CNET’s actions can be characterized as “inducing” or “encouraging” copyright infringement.
In this respect, it bears noting that peer-to-peer systems, while capable of being used for illegal ends, are not themselves illegal; consequently, merely posting a link that permits users to download the software will, alone, not constitute “inducement” or “encouragement” to infringe. As noted by the Plaintiffs, however, Download.com also provides reviews and articles pertaining to the linked-to software. The Plaintiffs have sifted through and gathered a number of these articles and reviews which they claim will evidence that CNET – vis-à-vis its reviewers – has tacitly encouraged infringement. By way of example, the Plaintiffs cite an article in which a CNET reviewer references the availability of multiple peer-to-peer systems that can “satisfy the software sweet tooth.”
Given the foregoing, the most interesting aspect of this case may be finding out how a court will interpret the inducement and encouragement standard as applied to a website devoted to criticism which, unlike print criticism, has the capability to directly and immediately linking users to a product. Until then,the defendant has, for its part, inserted a new disclaimer clarifying that “CBS Interactive does not encourage or condone the illegal duplication or distribution of copyrighted content.
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