Today, a federal district court in New York found LimeWire liable for inducing copyright infringement and vicarious copyright infringement. The court’s decision, at least on those aspects of the case, may not be terribly surprising, given the precedent set in earlier cases like Grokster, Aimster, and Napster. But a few details of the court’s ruling deserve further mention.
First, the court declined to decide whether or not LimeWire was liable for contributory infringement. That’s because, under the Sony Betamax case that gave us video recorders, producers of devices that can be used to infringe copyright aren’t liable of those devices are capable of “substantial non-infringing uses.” In the LimeWire case, the court noted that different justices of the Supreme Court have different ideas as to what exactly that means. In deciding Grokster, Justice Breyer interpreted this as meaning that the non-infringing uses were significant ones. Justice Ginsburg, however, seems to be more of the opinion that the question was one of whether the number of non-infringing uses was substantial.
In refusing to decide, absent more factfinding, that LimeWire met this standard, the LimeWire court seemed to at least implicitly endorse the Breyer standard, saying that there wasn’t enough evidence before it to determine whether LimeWire was capable of substantial non-infringing uses, even though there was evidence that the majority of files traded on LimeWire seemed to be infringing.
On the other hand, there were a couple of worrying trends within the opinion. For one thing, the court, in assessing the facts that tended to show that LimeWire had the intent to induce infringement (one of the required factors in finding liability), they included the failure to include or make mandatory content filters. Even more worryingly, the same lack of filtering and active policing is cited as the reason that LimeWire was liable for vicarious infringement.
The problem with this is that it could easily lead to the law essentially requiring filters be put into place, or that providers of software or services need to actively police their users in order to avoid infringement (“Failure to utilize existing technology to create meaningful barriers against infringement is a strong indicator of intent to foster infringement.”). In the case of the inducement count, the potential harm of the court’s reasoning is mitigated somewhat by the fact that this lack of policing was one of many factors taken into account, alongside more active marketing and technical assistance by LimeWire that apparently showed much more intent to induce. It’s still a concern that the design of the software or its lack of copyright safeguards would be one of the factors for consideration, though.
And in the section of the opinion on vicarious liability, the design of the software and its lack of safeguards come much more to the fore. While vicarious liability is intended to hold someone responsible when those under his direction or control break the law, letting someone use your software or your network is far from controlling them. Certainly in a lot of circumstances, the law recognizes this (such as in the statutory limitations on intermediary liability in section 512 of the DMCA and in section 230 of the Communications Decency Act). As we and our allies argued in our amicus brief on this case, vicarious liability shouldn’t be imposed just because of the design choices made by developers, or the failure to user particular technologies that courts might, with perfect hindsight, look upon more favorably. Applying such standards for liability here just makes it that much easier for any number of software creators or network operators to find themselves on the wrong side of a blunderbuss approach to copyright enforcement.