Musicians Weave Elaborate CNET Conspiracy Theory In Attempt To Get BitTorrent Banned

from the scorched-earth dept

Tue, Nov 13th 2012 9:30am — Mike Masnick

Last year, we wrote about a silly and uninformed lawsuit filed by eccentric rich guy Alki David against CBS. David has an online TV company, FilmOn, which has some similarities to Aereo and other online rebroadcasters. The networks sued the company, of course, and David has since gone on an odd and vindictive campaign against them. As someone who tends to think services like his should be both legal and embraced, I'd like to support him, but his legal campaign is just ridiculous and now has the possibility of causing real and serious harm. His reason for suing CBS was that a few years ago CBS bought CNET, and CNET has (for many, many years) run a site called Download.com. Download.com is a service that many software providers use to distribute their software. David claimed that because Download.com (a site owned by CNET which was -- only relatively recently -- purchased by CBS) distributed Limewire -- which was eventually found to be infringing -- that CBS was also guilty of copyright infringement. That original lawsuit was dumped pretty quickly, after the judge noted that David had failed to show what copyrights were being infringed (a key piece in any copyright claim).

David regrouped and found a group of musicians to file a similar lawsuit -- led by Sugar Hill Music -- and so far that lawsuit has had slightly more success, though it has serious problems. The latest filing in the case, embedded below, involves the plaintiffs arguing that the court should issue an injunction blocking CNET/CBS from allowing any BitTorrent client from being downloaded. Yeah. The proposed injunction is full of complete crazy talk.

True to form, Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement. Defendants' inducement has sometimes become somewhat more sophisticated and subtle, in that, for example, Defendants now include a mild, disingenuous disclaimer about piracy on some of their web-pages and evidently no longer host certain P2P applications on their servers. Defendants, however, still expressly and explicitly show users how to use bittorrent programs to find copyrighted files to download. At all times, Defendants were aware that the bittorent programs they distributed were used overwhelmingly for infringing copyrighted works – primarily music, software, movies and video games. Although some court cases have found the proprietors of torrent websites liable for secondary copyright infringement,3 no court case has yet directly involved bittorrent applications and technology itself. Like a leopard that cannot change its spots and despite this Court’s clear admonishment that Defendants cannot simultaneously distribute software applications that they have encouraged to be used for purposes of infringement,4 Defendants continue to distribute bittorrent applications under the intentionally lazy and under-reactive guise that they cannot be held liable for this activity until a court order specifically prohibits the use of bittorrent technology to infringe Plaintiffs’ works. Although Plaintiffs believe it probable that courts will soon explicitly find the popular bittorrent applications to be secondarily liable for copyright infringement just as Napster and LimeWire were, it is beyond doubt that Defendants’ distribution of these programs and concurrent intent to induce infringement subjects Defendants to inducement liability, independent of any further inquiry. Bittorrent is a clear and present danger to copyrighted works. From evidence readily available in CNET’s own “news” articles, it is clear that bittorrent applications like uTorrent are growing explosively to fill the infringement vacuum left by Gnutella applications.

Yes, despite the fact that BitTorrent itself has been around for many, many years, and the software/protocol has never been found to be infringing in any way, these musicians are now insisting that it's "only a matter of time" and that CNET should be forced to block downloads of any and all BitTorrent products. There are so many crazy points here. First, Download.com is just a platform provider, which software providers use to distribute software, not the creator of the software. Second, BitTorrent is just a protocol and is quite different than the apps that the lawsuit relies on as previous generations, which were often complete ecosystems. BitTorrent software has always been just about a tool to download or distribute content -- legal or infringing. And, yes, there are a ton of legal uses of BitTorrent, even if the plaintiffs here pretend otherwise.

There are some other howlers as well, including the rise of copyright trolls, filing over 250,000 lawsuits against people for copyright infringement -- which the filing here uses as some sort of weird evidence that BitTorrent must be illegal, apparently completely unable to distinguish between a tool and the actions that some use that tool to accomplish.

Even more bizarre, the filing uses the fact that CNET had an article highlighting a legal use of BitTorrent (by the band Counting Crows who purposely released some tracks via BitTorrent) as evidence that CNET encourages people to infringe:

Defendants also use the purported “news” arms of their websites to dress up the marketing of bittorrent applications as legitimate news reporting. For example, CNET editor Seth Rosenblatt (the same individual who authored the fivestar review of uTorrent), wrote a May 14, 2012 article published and available on Defendants website titled “Download This Mr. Jones,” ostensibly about how the recording artist the Counting Crows had partnered with the software publisher of uTorrent to release their music for free download via torrent.... In a portion of the article quoting the lead singer of the Counting Crows regarding the 150 million users of uTorrent, Rosenblatt included hyperlinks accompanied by the word “download” to the CNET download pages for uTorrent and BitTorrent.

The idea that CNET's news operation deserves sarcastic "quotes" around it is ridiculous. News.com has been one of, if not the, leading tech news publication for at least a decade and a half. And the idea that this story wasn't actually newsworthy, as implied here, is simply ridiculous. Lots of publications covered it, not to push people to download BitTorrent, but because it was newsworthy. But much of the argument relies on news reporters talking about various issues related to BitTorrent, and then arguing that this is all some sort of front to push more people to download BitTorrent. To put it simply: this is insane. News.com and Download.com. I've known people associated with both properties, and the idea that they write articles about BitTorrent to try to drive more downloads is ridiculous.

But, even ignoring that, then arguing that all BitTorrent-related products should be barred from download isn't just overkill, it's pushing a rather scary and unique legal theory that sites should be barred from distributing software -- made by parties not even represented in the lawsuit -- just because one party doesn't like how some of the users of that software use it. If there's infringement it's on the part of some potential end users, but rather than going after them, this lawsuit doesn't just go one step back (to the software providers), but an even further level back to the platform that enables software downloads, and claiming that somehow they're all responsible for this.

It seems pretty clear that this lawsuit is really designed to be a nuisance for CBS, but the legal theories are highly questionable and the requested injunction is a massive overreach. Hopefully the court recognizes just how much an overreach this request really is.

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Filed Under: alki david, bittorrent, copyright, injunction
Companies: cbs, cnet, sugar hill music

35 Comments

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Zakida Paul (profile), 13 Nov 2012 @ 9:36am

There really needs to be some sort of system to penalise people/organisations who waste the courts' time with these silly lawsuits. That is pretty much the only thing that would make them think twice.
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Anonymous Coward, 13 Nov 2012 @ 9:37am

You can sure bet that the copyright holders are going to do everything possible to win this one to outlaw BitTorrent.
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Anonymous Coward, 13 Nov 2012 @ 9:41am

Mike--

The embedded document won't download. Same thing happened with a different document you posted yesterday. Just FYI.
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This comment has been flagged by the community. Click here to show it

out_of_the_blue, 13 Nov 2012 @ 9:43am

Rich people LIKE to make trouble.
It's their amusement when doesn't bring income too. That's about as far one needs go in looking for cause. You should stop right there and ponder how money enables the "eccentric" to exert power and inflict damage. This one is relatively harmless, is all.
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Zakida Paul (profile), 13 Nov 2012 @ 9:45am

Re: Rich people LIKE to make trouble.
Your blanket 'rich' envy is getting tiresome now. Please piss off.
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Anonymous Coward, 13 Nov 2012 @ 9:49am

Re: Rich people LIKE to make trouble.
Just like the RIAA, right? Except that the RIAA has been proven to be anything but relatively harmless...

Weren't you threatening to leave the site, now?
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weneedhelp (profile), 13 Nov 2012 @ 9:56am

Re:
Are you behind a corporate firewall?

At work I cant see it either, when home I can.
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Lord Binky, 13 Nov 2012 @ 9:59am

"True to form"
So...the people look like humans?

"Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement."

Uh... distributing that much data over the internet costs alot of money, and spending money without recieving money is not considered a good business plan. So this engine of everything for free wouldn't work out well for the business distributing..well anything.
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weneedhelp (profile), 13 Nov 2012 @ 10:04am

Re: Rich people LIKE to make trouble.
Lemme show you some love OOTB
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Shmerl, 13 Nov 2012 @ 10:04am

Re:
embed.docstoc.com domain seems to be non existent.
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Anonymous Coward, 13 Nov 2012 @ 10:05am

Re: Re:
At work I cant see it either, when home I can.

I really, really wish Mike would post simple links to PDFs along with the embeds.

Please.
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Shmerl, 13 Nov 2012 @ 10:08am

Re: Re: Re:
+1. I don't see any point in embedding PDF in Flash...
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DannyB (profile), 13 Nov 2012 @ 10:09am

A showing of copyright infringement
Proof of copyright infringement:
1. CBS owns CNET
2. CNET runs download.com
3. download.com distributes Limewire
4. Limewire can potentially be used for both infringing and non-infringing purposes.
5. Since Limewire can be used for infringing purposes, someone, somewhere must be using it for infringement.
6. Thus, CBS is guilty of copyright infringement and should pay us BEEELIONS of dollars.

In addition, your honor, CBS has lots of money and we want it.

Google must also have something, somehow to do with this, so can we pleeeeeease just add them as a defendant to the complaint?
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PaulT (profile), 13 Nov 2012 @ 10:11am

Re:
Works fine for me. Usual suspects would probably be a firewall block, outdated version of Flash, etc. although I do second the call for a non-Flash link to the PDF wherever possible...
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Anonymous Coward, 13 Nov 2012 @ 10:12am

Re:
Honestly, they bundle toolbars, spyware, and other questionable software with their installers. The revenue generated by those probably offset the bandwidth and storage costs and probably takes in a few bucks. When you take into consideration that they need the bandwidth and storage for other factors, such as the News site, CBS, etc the additional revenue is probably not significant but an added bonus.
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DannyB (profile), 13 Nov 2012 @ 10:13am

Re: Re: Re:
Yes. Please just link to PDFs when possible. No reason to embed them in a flash. Or link to them in addition to embedding them in a flash.
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DannyB (profile), 13 Nov 2012 @ 10:17am

How would that work?
How would one outlaw BitTorrent? What exactly is being outlawed?

A communication protocol? Other protocols can do the same thing.

A specific software program that uses BitTorrent? There are other software that speak this protocol, and more new ones could be written.

The real solution is to take a step back. Outlaw communication. The problem is not just the Intartubes. Even without the internet, people would still commit the horrible crime of copyright infringement.
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Anonymous Coward, 13 Nov 2012 @ 10:59am

Re: A showing of copyright infringement
"Proof of copyright infringement:
1. CBS owns CNET
2. CNET runs download.com
3. download.com distributes Limewire
4. Limewire can potentially be used for both infringing and non-infringing purposes.
5. Since Limewire can be used for infringing purposes, someone, somewhere must be using it for infringement.
6. Thus, CBS is guilty of copyright infringement and should pay us BEEELIONS of dollars."

Limewire? No need to go there. Just swap out "Limewire" with "text editor", "audio editing software", "CD burning software", "screen capture software", "image editing software", "web-browsing software", "email-software", "FTP software", "web design software"--well, basically all software that lets you create anything, or download, upload or transmit anything. Pretty much all such software has infringing and non-infringing uses. Crazy, crazy suit.
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Lizzardborn, 13 Nov 2012 @ 11:00am

Can you hear ... the Streizand effect thundering in the horizon.
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Anonymous Coward, 13 Nov 2012 @ 11:12am

the problem is that the court will take notice of and probably do as is asked (demanded?) and ban bit torrent if for no other reason, it doesn't understand it or because the entertainment industries have been trying to do so for years. if the thick fuckers at the DoJ get involved, Lord help us!
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Anonymous Coward, 13 Nov 2012 @ 11:57am

In other news recently...

"Since the start of the �Promo Bay� initiative in January, 10,000 independent artists have signed up to be promoted by the world�s largest torrent site."
http://torrentfreak.com/10000-artists-signed-up-for-pirate-bay-promotion-12110/

This is our future.
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nasch (profile), 13 Nov 2012 @ 11:57am

Re: A showing of copyright infringement
Yeah, forget secondary liability (the tool maker), or even tertiary (the distributor of the tool). Let's go for quaternary liability - the owner of the distributor of the tool used for infringement! We'll be RICH!
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Richard (profile), 13 Nov 2012 @ 12:01pm

Re: A showing of copyright infringement
I think you just showed that 6 degrees of separation allows ANYBODY to be prosecuted for copyright infringement...
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Anonymous Coward, 13 Nov 2012 @ 12:04pm

Re: A showing of copyright infringement
A google search for "download.com" returns a link to "download.com" as its first result. So Google has something to do with it!
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Peter Nelson, 13 Nov 2012 @ 12:26pm

Seriously Mike? You don't see what he's doing
Honestly Mike - I'm a big fan of yours... I truly am. But I'm really surprised that you don't see what he's doing here. He's not crazy. He's simply saying 'look, if you guys are going to file against me for aiding infringement, let me turn the same lens back on you'.

And yes - it sounds 'crazy'... because the arguments are crazy. But if places like Mega can be brought down by them, then CBS should be vulnerable to the same argument/tactic.

I like this guy - he's bright, he's monied, he has time on his hands, and he's making a point. I say 3 cheers to him.

- Peter
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saulgoode (profile), 13 Nov 2012 @ 12:36pm

Re: Seriously Mike? You don't see what he's doing
I'm not familiar with Alki David or his company, nonetheless, I tend to agree that the apparent intent of this case is to highlight the level of absurdity secondary liability can reach.
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Baldaur Regis (profile), 13 Nov 2012 @ 12:45pm

Editor's Choice
Reviewing legal documents is a cheerless task. Too often, legalese is a dry and precise language bereft of wit or insight. It was with great pleasure, then, to receive the latest from relative newcomers BAKER MARQUART LLP. Through the use of vivid imagery, innuendo and a laser-like focus on disparagement, Marquart takes the reader on a roller coaster ride through the hellish underbelly of internet piracy. Here are some actual quotes:
In furtherance of profits, Defendants shamelessly promote these P2P software applications and encourage their use to infringe copyrights.

True to form, Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement.

Defendants use a star-rating system to communicate editorial approval of certain bittorrent applications.

Defendants have broadcast and solicited users to use P2P applications to infringe copyright, and have specifically broadcast and solicited users to use bittorrent applications like uTorrent to infringe.

Were it up to them, Plaintiffs would not allow their works to be distributed in such a cesspool and the value of Plaintiffs� musical compositions are irreparably damaged by being traded (and pulled up in search results) in a �wild wild west� of pornography.

As discussed above, although bittorrent technology potentially has non-infringing uses, Defendants are well-aware that its primary use is for infringing copyrights and it is this use alone which Defendants have promoted, encouraged, instructed and profited from.
From the first page to the last, the Motion for Preliminary Injunction will keep you on the edge of your seat. We gladly award this masterpiece 5 Stars. Bravo!
[ link to this | view in thread ]
Baldaur Regis (profile), 13 Nov 2012 @ 12:49pm

Editor's Choice
Reviewing legal documents is a cheerless task. Too often, legalese is a dry and precise language bereft of wit or insight. It was with great pleasure, then, to receive the latest from relative newcomers BAKER MARQUART LLP. Through the use of vivid imagery, innuendo and a laser-like focus on disparagement, Marquart takes the reader on a roller coaster ride through the hellish underbelly of internet piracy. Here are some actual quotes:
In furtherance of profits, Defendants shamelessly promote these P2P software applications and encourage their use to infringe copyrights.

True to form, Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement.

Defendants use a star-rating system to communicate editorial approval of certain bittorrent applications.

Defendants have broadcast and solicited users to use P2P applications to infringe copyright, and have specifically broadcast and solicited users to use bittorrent applications like uTorrent to infringe.

Were it up to them, Plaintiffs would not allow their works to be distributed in such a cesspool and the value of Plaintiffs� musical compositions are irreparably damaged by being traded (and pulled up in search results) in a �wild wild west� of pornography.

As discussed above, although bittorrent technology potentially has non-infringing uses, Defendants are well-aware that its primary use is for infringing copyrights and it is this use alone which Defendants have promoted, encouraged, instructed and profited from.
From the first page to the last, the Motion for Preliminary Injunction will keep you on the edge of your seat. We gladly award this masterpiece 5 Stars. Bravo!
[ link to this | view in thread ]
Anonymous Coward, 13 Nov 2012 @ 12:57pm

Re: Seriously Mike? You don't see what he's doing
Honestly, if they really wanted to take CNet's download site down, they should of used the DCMA argument. Distribution of DRM circumvention tools is easy to show and widely known to exist. Will it do any good for either the end users or the copyright industry? Of course not. It will simply show how futile these laws are.
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Anonymous Coward, 13 Nov 2012 @ 1:02pm

Re: Re: Seriously Mike? You don't see what he's doing
I agree. Since the copyright minimalists want to live by the sword, they can die by the sword.
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bob, 13 Nov 2012 @ 1:07pm

engine of piracy
engine of piracy like... a boat on the ocean?
like the damn bootleg supporter Henry Ford and his 4 wheeled boot legging machines?
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Anonymous Coward, 13 Nov 2012 @ 2:04pm

Re: Re: Re:
+1

I have noscript installed on FireFox and enabled on techdirt. I'm not going to unblock the crap flash script just to read something that would be better suited as a pdf any way.
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Anonymous Coward, 13 Nov 2012 @ 9:48pm

What are the chances Alki David was inspired by this guy?
http://www.youtube.com/watch?v=JGyMyRwFAy8
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Loki, 13 Nov 2012 @ 10:08pm

I have a T-shirt that says "Sarcasm is the body's natural defense against Stupid", but I'm not sure if I cloned a million copies of Dark Helmet could I muster a proper defense for this level of stupid.
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Read The Document, 15 Nov 2012 @ 9:08pm

Microsoft's Paul G Allen owns a Huge Chunk of Bittorrent
No one thinks it's odd the Paul G Allen funded both CNET and Bittorrent , both as a Primary investor? Notice the RIAA and the MPAA never sued bittorrent?

CBS, Cnet's owner, is the LEAD Member of the MPAA suing users that actually used the software? Software promoted by CNET with expansive charts and graphs showing the best software to use to purposely download copyrighted works, by name?

CNET promoted real instructional videos using known copyrighted songs and movies. And everyone is defending Paramount Pictures/CBS Television? That injunction, if you actually care to read it, is only against CBS Interactive, not FileHippo or other download sites that don't brazenly proclaim the best ways to pirate media online.
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