The arguments have been heard, and the court has ruled: CNET will not be banned from reporting on, or encouraging readers to download, P2P software as the result of a lawsuit brought by FilmOn.com founder – and longtime nemesis of CNET’s parent company, CBS – Alki David.
U.S. District Judge Dale Fischer has rejected an injunction on the site requested last year by more than a dozen R&B and hip-hop musicians arguing that the website was inducing music piracy by writing about and linking to such software as Grokster and Limewire. The artists also claimed CNET explained to readers how to remove digital rights protections on media files. Last month, CBS Interactive, the company behind CNET, responded to the request by stating that, even if CNET were prevented from linking to or mentioning such sites, “those sites would still remain available to the public and would still be easily found by a simple search on Google – albeit without the warning against infringement that [CNET] provides.” Additionally, CBS said such a ban would have the side effect of hurting “the public interest… by denying legitimate and truthful information about a pervasive technology, as well as by impending non-infriging uses.”
In his ruling, Fischer wrote that, although “there might be some evidence of past inducement of copyright infringement,” that doesn’t necessarily translate into the need for the blanket ban required by the issuing of the requested injunction.
“The Court is well-aware that injunctions are often properly imposed where allegedly wrongful conduct has ceased. However, there must be at least some evidence that future infringement may occur,” he wrote. “There is no evidence of any ongoing distribution of any file-sharing software with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement,” he went on, pointing out that the more transgressive CNET articles were “published a decade ago,” and didn’t necessarily reflect the website’s current stance on copyright issues. “The Court has no reason to believe that Defendants will purposefully encourage copyright infringement now or in the foreseeable future,” he concluded.
Moreover, Fischer explained that he believed that this kind of injunction is tantamount to a form of censorship, noting that the lawsuit may give the impression that “Plaintiffs’ goal goes far beyond stopping actual infringement by Defendants and extends instead to silencing public discussion of P2P technologies.” This marks a progression of sorts on Fischer’s part; last July, he argued that discussions over whether or not the site could distribute or writing about P2P software “does not directly implicate any First Amendment issues.”
Neither CBS nor Alki David have responded to the ruling as yet; the latter may simply be too busy with his other high-profile lawsuit, against Barry Diller’s Aereo.
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