Music industry has 'strong case' against LimeWire

Sony BMG, Virgin Records, Warner Bros and others have sued the New York company behind one of the internet's most popular peer-to-peer applications, LimeWire. A technology lawyer suggests the case could be straightforward.

The software, estimated by Lime Wire LLC, the company behind it, to reside on 1.5% of PCs worldwide, allows users to connect to the Gnutella file-sharing network. It claims to be "the fastest P2P file-sharing program on the planet." Users can search for files on the computers of other users connected to the network. At the time of writing, more than two million PCs were connected.

The suit filed at a New York district court seeks compensatory and punitive damages, accusing LimeWire of being "devoted essentially to the Internet piracy of plaintiffs' sound recordings," according to reports.

The US industry body RIAA made clear that it would pursue P2P companies after a Supreme Court win for the music industry in 2005 against Grokster and StreamCast Networks, distributor of Morpheus which, like LimeWire, connects to the Gnutella network. The companies were found liable for copyright infringements by users of their peer-to-peer software, because they had intended the software to be used for that purpose.

The RIAA sent cease-and-desist letters to seven P2P companies last September, warning them to stop enabling and inducing the infringement of its members' music. Lime Wire LLC was believed to be among the recipients.

A spokesman for the RIAA said today: "Despite numerous efforts to engage Limewire, the site's corporate owners have shown insufficient interest in developing a legal business model that adequately respects copyrights. While other services have come productively to the table, Limewire has sat back and continued to reap profits on the backs of the music community."

The RIAA said added that it has "patient" as a number of former pirate networks – WinMX, Bearshare, Grokster, i2hub, Kazaa – have ultimately decided to close down or transition into legal music services.

The company behind Kazaa, once the internet's most popular P2P application, agreed to settle a lawsuit and pay the record industry $115 million last month. It also agreed to introduce filtering in its network to block the trade of copyright-protected music.

Struan Robertson, editor of OUT-LAW.COM and a technology lawyer with Pinsent Masons, said Lime Wire LLC may struggle to defend the case.

"This is a US company being sued in the US where a precedent has been set by the Supreme Court. That makes it an easier win for the music industry than some of its other download disputes."

"On the face of it, the industry has a strong case. In the Grokster case, the Supreme Court set a test for the degree of intent necessary to find the distributor of software liable for the actions of its users," he said. "They need to show purposeful, culpable expression and conduct to be liable for inducing copyright infringement. The court said this can be done by a website sending a message that stimulates others to commit violations."

Contrasting the case with a 1980s dispute over the Betamax VCR, the court in Grokster found evidence that the P2P companies "acted with a purpose to cause copyright violations by use of software suitable for illegal use."

Other key features of the Grokster ruling were the absence of filtering tools or mechanisms to diminish the infringing activity using their software; and that StreamCast and Grokster made money by selling advertising space, directing ads to the screens of computers that use their software.

The opinion noted: "the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing."

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