Wednesday, May 12, 2010 - The Progress & Freedom Foundation Blog

Old Wine in an Old Bottle: LimeWire and Mark Gorton Held Intentional Inducers of Massive Piracy

I just read Judge Kimba Wood's 59-page summary-judgment Opinion in Artista Records, LLC v. Lime Group LLC. It held LimeWire LLC and its parent company, the Lime Group, liable under Grokster for intentional inducement of mass piracy. It also held Lime Group CEO Mark Gorton personally liable for his decade of deliberate contempt for the federal civil rights of artists and those who invest in their art.

Substantively, the Lime Group inducement ruling tracks the reasoning in Grokster. Indeed, it tracks so closely that Gorton and LimeWire surely knew that they were liable under Grokster by July of 2005. Nevertheless, they chose to keep on intentionally inducing piracy for five more years. One hopes that Judge Wood will keep that in mind when crafting injunctive, forfeiture, and monetary remedies. Otherwise, two other aspects of the decision are particularly interesting.

First, Lime Group revealed more data about how theoretically "neutral" Gnutella-based file-sharing programs like LimeWire are actually used. The Court in Lime Group credited evidence (p.7) showing that 98.8% of files actually requested for downloading were, or were highly likely to be, infringing. That figure--98.8%--should end years of babble about the important "non-infringing uses" of "decentralized" file-sharing programs like LimeWire.

There aren't any. Apparently, the set of wholly law-abiding users of Gnutella-based file sharing programs consists of Robert Topolski--and, perhaps, a few other true-believers devout enough to use Gnutella's screwdrivers only to pound nails.

But otherwise, statistical analysis proved that lawful uses of LimeWire were so rare as to be purely incidental--even though nothing about LimeWire required it to be used for piracy. Nevertheless, the needs of illicit and lawful exchange differ so radically that any program or network well-suited to the needs of illicit exchange will necessarily be utterly unsuited to the needs of lawful exchange. See, e.g., Tim Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 717 (2003) ("P2P design shows that avoiding copyright requires important deviations from the optimal design for speed, control, and usability.").

So that is where the Electronic Frontier Foundation's long quest to use peer-to-peer networking to "design around" civil and criminal copyright laws ultimately led: to nowhere--to a technological dead-end used for almost nothing but piracy because it is useful for almost nothing else--except returning pedophiles to the streets of Maryland. By now, even EFF should have figured this out--perhaps when LimeWire itself declined to use its Gnutella-based distribution system to legally distribute the licensed music sold from its central-server-based LimeWire Store.

Second, page 14, 15 and footnote 15 of the Opinion strike from the declaration of former LimeWire COO Greg Bildson some disturbing legal advice reportedly given to LimeWire by two attorneys--both identified by name--whom Mr. Bildson testified had advised LimeWire on how "to maintain plausible deniability regarding its users' downloading of copyrighted music," how to avoid acquiring "incriminating knowledge of what individual users are searching for" and how "to prevent creation and preservation of incriminating evidence."

Arguably, some judicial comment on the propriety of that "legal advice" may lurk in the Judge's decision to quote--in a public Opinion--Mr. Bildson's sworn testimony about the substance of the "legal advice" that LimeWire received from those two named attorneys.

Later, I may also discuss this Opinion's role in driving yet another nail into the coffin of Justice Breyer's interpretation of the meaning of Sony. Until then, my congratulations to the record labels and the entire music industry on their latest victory over another deliberate, for-profit piracy syndicate.

posted by Thomas Sydnor @ 11:54 PM | Copyright , E-commerce , IP , Innovation , Internet