On Tuesday, May 3, 2011, FilmOn Founder, and self-proclaimed eccentric billionaire, actor, producer, director and writer, Alki David, together with a motley assortment of hip hop and R&B artists, including 2 Live Crew, sued CBS and CNET over their distribution of the now-inactive file-sharing software LimeWire. The impetus for the suit seems to be, at least partially, related to David’s vendetta against CBS. CBS, along with Fox, ABC, and NBC sued and won a restraining order against David’s company FilmOn for copyright infringement after FilmOn began broadcasting its programming without authorization. In retribution, David has purportedly become obsessed with maligning the reputation of CBS through his “cbsyousuck” YouTube channel, Twitter account and the page www.FilmOn.com/cbsyousuck/. In fact, David first threatened to sue CBS and CNET for their alleged “hypocrisy” as early as December 2010.
David has now made good on that threat with the help of his attorney Michael T. Zeller of the firm Quinn Emanuel Urquhart & Sullivan LLP. The Class Action Complaint, filed on Tuesday, alleges that CBS, CNET and LimeWire directly contributed to “massive copyright infringement of Plaintiffs’ works” and that CBS (through CNET) was the main distributor of LimeWire software, which they promoted in order to “directly profit from wide-scale copyright infringement.” In support of its claims of inducing, contributory and vicarious copyright infringement, the Complaint alleges that CNET reviewed and approved the LimeWire software and its updates prior to offering them through Download.com. Further, the Complaint states that CNET still has not removed the software or “issue[d] a warning that users should refrain from using LimeWire to infringe copyrights.”
In truth, however, LimeWire is no longer available through Download.com and a CNET editor’s note on P2P downloads states: “Using P2P and file-sharing software to distribute copyright material without authorization is illegal in the United States and many other countries. CBS Interactive does not encourage or condone the illegal duplication or distribution of copyrighted content.” See e.g. http://download.cnet.com/P2P-Rocket/3000-2196_4-10841059.html.
CBS has responded to Mr. David’s lawsuit by stating: “This latest move by Mr. David is a desperate attempt to distract copyright holders like us from continuing our rightful claims. His lawsuit against CBS affiliates is riddled with inaccuracies, and we are confident that we will prevail, just as we did in the injunction hearing involving his company.”
The Complaint is an attempt to stretch contributory copyright to its farthest limits by asserting that CBS, as a parent company of a software distributor, had a duty to take affirmative steps to prevent copyright infringement. This seems like a difficult hurdle to climb. CBS is at best four steps removed from any actual infringement and none of the allegations demonstrate that CBS encouraged users to download copyrighted material. Further, it is noteworthy that LimeWire, while available through CNET’s Download.com, was one of over 100,000 available software downloads and P2P software has several legitimate purposes. In the LimeWire action, the Court only found that the P2P software was illegal based on evidence that LimeWire purposefully induced users to transfer copyrighted material, the mere functionality of the software was not enough. If Mr. David in fact hoped to exact his revenge on CBS through this lawsuit, he may be leaving the Courthouse unsatisfied.
