LimeWire, a software application that allows for free music and music file sharing over the Internet, has suffered a recent and significant judicial defeat in at the hands of 13 major record companies. The LimeWire lawsuit indicates that record companies will not back off from fighting against free music downloads.

Some years ago, the record companies filed a lawsuit in federal court in New York against certain companies and individuals while asserting a variety of federal and state law claims for their alleged role in the distribution of LimeWire. The complaint alleged that LimeWire users utilize LimeWire to obtain and share unauthorized copies of the record companies' sound recordings, and that the defendants facilitated this infringement by distributing and maintaining LimeWire. After several years of litigation, the parties filed motions for motions for summary judgment to adjudicate some claims prior to trial.

While the court denied some of the motions, holding the issues raised in those motions over to trial, the court did grant the record companies' motions on claims of inducement of copyright infringement, common law copyright infringement, and unfair competition. The granting of those motions, obviously, is not good news for LimeWire.

In reaching its decision, the court provided some background on LimeWire, first noting that LimeWire was founded in 2000 and that year released LimeWire as a file-sharing program that utilizes peer-to-peer (P2P) technology on the Gnutella network. The court recognized that LimeWire users can share practically all files stored on their computers with other LimeWire users, and that when a LimeWire user wishes to locate digital files on the network, he simply enters search information into the search function on the LimeWire user interface.

At that point, as the court understood, LimeWire scans the computers of other LimeWire users to find files that meet the search query. Then, as the court noted, the LimeWire user can download any files that LimeWire comes up with. Finally, when the user downloads a file, LimeWire transfers a digital copy of the file from the computer from where it is located to the LimeWire user's computer.

The problem is that of the millions of files transferred in this way by LimeWire, thirty are sound recordings as to which the record companies own copyrights or exclusive rights and that are at issue in the lawsuit. The record companies claim that LimeWire users share and download unauthorized digital copies of these thirty recordings over LimeWire, and that the defendants are secondarily liable for this infringement because they maintain and distribute LimeWire.

In reaching the conclusion of inducement of copyright infringement, the court found evidence that LimeWire users do infringe on the copyrights of the record companies by sharing unauthorized digital copies of the subject recordings via LimeWire, and that the evidence established that defendant LimeWire LLC (LW) intentionally encouraged direct infringement by LimeWire users. Factors showing encouragement of infringement included: LW's awareness of substantial infringement by users, LW's efforts to attract infringing users, LW's efforts to enable and assist users to commit infringement, LW's dependence on infringing use for the success of its business, and LW's failure to mitigate infringing activities.

And because the court already found that LimeWire users infringe the copyrights of the record companies and that LW has engaged in purposeful conduct intended to foster that infringement, the court also granted summary judgment of the record companies on their claims for common law copyright infringement and unfair competition.

What's next? The remaining claims as to which summary judgment was not granted will still proceed in litigation toward trial. However, with the granting of certain summary judgment motions in their favor, the record companies possibly could seek injunctive relief to stop LimeWire from continuing as it has up until now. Also, the record companies invariably at the appropriate time in the litigation will seek their damages, which could be substantial.

LimeWire plainly does not like this judicial tune.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com