In the past couple of weeks, three important decisions regarding copyright infringement have been made by various courts. LimeWire, ISOHunt, and RapidShare all involve companies that allow users to share and download files. While there are technical differences as to how each of them work, from a high level, these applications all perform pretty much the same functions. Yet one of these companies, RapidShare, made out okay while the other two will most likely be shut down. So what’s the difference?
Let’s start with some history. The Grokster case sets the stage for all three of these cases. Grokster provided software that allowed users to share files via a peer-to-peer file sharing network. Normally a company whose products could be used for copyright infringement but have a valid, non-infringing use would not be liable for the infringement of its users. However, in this case the court found that Grokster induced its users into infringing and was thus held liable. This wasn’t too far of a reach for the court, considering that Grokster marketed its application as a way to download copyright infringing content. Ever since, companies have been very careful as to how they market their applications.
This brings us to LimeWire and ISOHunt. In the former case, the court held (among other things) that LimeWire’s purchase of search terms induced users into downloading copyright infringing material. LimeWire purchased search keywords for the terms “napster”, “kazaa”, and “morpheus”, all popular applications for downloading copyrighted material. The court found that by associating itself with these keywords, LimeWire induced its users into downloading copyrighted material. ISOHunt is in the same boat. The court found that “evidence of Defendants’ intent to induce infringement is overwhelming and beyond reasonable dispute.” These two cases show that courts don’t take kindly to file sharing sites, but then how did RapidShare get so lucky?
First of all, the RapidShare case is still in the preliminary injunction phase, so the case is far from over. But RapidShare does something different than the others. When RapidShare finds infringing material , instead of just deleting the offending material, it attempts to provide a link that allows users to purchase the material legally. At a time when courts are slapping down file sharing sites, this little action seems to have made a big difference. It shows that RapidShare actively seeks out and removes infringing content.
RapidShare’s future is still anything but certain, but at least it is starting off on the right foot. Unfortunately for LimeWire and ISOHunt, their fates are pretty much sealed. But maybe the big difference in outcomes just depends on the plaintiff. In RapidShare, the plaintiff is an adult entertainment company as opposed to mainstream movie companies as in the other two cases. Perhaps the courts are alright with being prevented from getting the latest ‘Sex and the City’ movie, but take away their favorite means of downloading porn and well…
Stephen Burch
