Summary judgment against one of the last remaining free file-sharing giants was handed down by the US District Court in New York last week. LimeWire has continued to facilitate free music and movie file-sharing over the last decade, while its competitors (such as Napster and Kazaa) have been forced to shut down. Following a four year legal battle commenced by 13 major US record labels, LimeWire has now been found liable for inducing copyright infringement.
US District Judge Kimba Wood held that, by distributing and maintaining its software, LimeWire “intentionally encouraged direct infringement by [its] users”. Wood J followed the approach of the US Supreme Court in the Grokster case (which was in consideration of another file-sharing application, Morpheus) in holding that a plaintiff must prove two things in order to establish inducement of copyright infringement:
· that the defendant engaged in purposeful conduct that encouraged copyright infringement; and
· that the defendant had the intention to encourage such infringement.
The evidence clearly established that LimeWire was liable for inducing copyright infringement. In short, LimeWire was aware of substantial infringement by its users, it took steps to attract new users with the purpose of fostering infringement, the success of its business depended on copyright infringement and it took no meaningful steps to mitigate infringing activities.
Australia too has seen its fair share of copyright infringement cases in the realm of free music downloads. In the Cooper case, the Full Federal Court held the owner and operator of the website ‘MP3s4Free’ liable for authorising copyright infringement contrary to s 101(1) of the Copyright Act. A similar result was reached in the famous Kazaa case.
While the concepts of authorising infringement and inducing infringement are not wholly analogous, the decision of the US District Court in LimeWire appears to be consistent with the general approach in Australia when it comes to authorisation. As was made clear in the Kazaa case, a person does not authorise copyright infringement merely because they “provide the facilities” used in order to infringe copyright. Something more is required. In Australian jurisprudence, a distinction has been drawn between “the provision of a necessary precondition to infringements occurring and the provision of the actual ‘means’ of infringement” (see iiNet at [400]). Only provision of the latter will give rise to a finding of authorising infringement.
Certainly, applying the recent reasoning of the Federal Court in iiNet, LimeWire appears to be much more than a mere internet service provider offering a necessary precondition to infringements occurring. Consistent with the approach in Cooper and Kazaa, LimeWire provided the actual ‘means’ of infringement.
Following the decision in the US, LimeWire is unlikely to be shutdown. According to recent news reports, the parties may attempt to come to an agreement on licence fees (similar to those payable in the iTunes Music Store) when the matter is next due for hearing on 1 June. We’ll be sure to keep you updated…
