Peter Kafka

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Big Music Wins One: LimeWire Loses Court Fight

A big victory for Big Music: A federal court has ruled in favor of the music labels in their fight against LimeWire, one of the most prominent file-sharing services on the Web.

You can read all of U.S. District Court Judge Kimba Wood’s ruling at the bottom of the post. But the short version is that Wood, using the Supreme Court’s Grokster decision as a guide, found that LimeWire is indeed guilty of copyright violations. In her words:

LimeWire… (1) is aware that LimeWire’s users commit a substantial amount of copyright infringement; (2) markets LimeWire to users predisposed to committing infringement; (3) ensures that LimeWire enables infringement and assists users committing infringement; (4) relies on the fact that LimeWire enables infringement for the success of its business; and (5) has not taken meaningful steps to mitigate infringement.

LimeWire is unusual among post-Napster, post-Grokster file-sharing operations in that it operates out in the open, in the U.S. The company, based in New York City and owned by investor Mark Gorton, actually sells a smattering of music itself with the blessing of some of the smaller music labels. But while the company has been engaged in a long back-and-forth with the big guys, it has never reached a settlement.

Meanwhile, almost all of the music available on the service (93 percent, according to a study used in the lawsuit) and even more of the stuff actually downloaded (98.8 percent, via the same study) is protected by copyright and should not have been there. Court documents state that LimeWire generated revenue of $20 million in 2006.

LimeWire does tell its users they shouldn’t steal music. This is the warning you get when you try to do so:

But that’s not enough, Wood ruled. And certainly not when the service was going out of its way to court users searching Google (GOOG) for free tunes. From her ruling:

LimeWire conducted a marketing campaign through Google AdWords, whereby Google users who entered certain search queries, such as “replacement napster,” “napster mp3,” “napster download,” “kazaa morpheus,” “mp3 free download,” and dozens of other phrases containing the words “napster,” “kazaa,” or “morpheus,” would see an advertisement leading them to the LimeWire website.

The next step in the case is a June 1 conference. Here’s LimeWire CEO George Searle’s statement, which doesn’t include a vow to appeal the ruling:

LimeWire strongly opposes the Court’s recent decision. LimeWire remains committed to developing innovative products and services for the end-user and to working with the entire music industry, including the major labels, to achieve this mission. We look forward to our June 1 meeting with Judge Wood.

And here’s the end-zone dance from Mitch Bainwol, CEO of the music industry’s lobbying group:

This definitive ruling is an extraordinary victory for the entire creative community. The court made clear that LimeWire was liable for inducing widespread copyright theft.

LimeWire is one of the largest remaining commercial peer-to-peer services. Unlike other P2P services that negotiated licenses, imposed filters or otherwise chose to discontinue their illegal conduct following the Supreme Court’s decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators. The court’s decision is an important milestone in the creative community’s fight to reclaim the Internet as a platform for legitimate commerce. By finding LimeWire’s CEO personally liable, in addition to his company, the court has sent a clear signal to those who think they can devise and profit from a piracy scheme that will escape accountability.

We are gratified by the court’s careful and thorough analysis of the facts and applicable law.

Bigger question: What does this mean for the music industry? Assuming Wood’s ruling stands, this one will definitely feel good for the labels, and it would have been a very big deal had they lost. But it certainly won’t help them in fighting less formally organized P2P services or those set up outside the U.S.

Arista Records Summary Judgment Opinion

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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik