Techdirt notes that peer-to-peer network Limewire is returning fire in its battle with the RIAA:
Last month, the RIAA sued Limewire after Limewire wouldn’t agree to simply roll over and pretend the RIAA’s interpretation of the Supreme Court decision in the Grokster case was actually what the Supreme Court said. The court actually said that services could be found liable, if they were shown to actively induce infringement. The RIAA and the MPAA pretended this meant that any file sharing network that had unauthorized content was flat-out illegal. Of course, that’s a bit of a stretch. So, it already seemed like it would be an interesting case, but now Limewire has hit back even harder with counterclaims accusing the RIAA of antitrust violations, consumer fraud and other misconduct. Specifically, they seem to be making the case that the RIAA only wants to shut down Limewire because it is a competitive distribution mechanism that they cannot control, which helps compete with their monopolistic control on traditional distribution. It’s an interesting claim that does make some sense, though the RIAA will simply try to paint Limewire as a tool for “thieves.” As with many of these types of cases, there’s probably a decent chance that the sides will settle before any decision is made, but in this case, it would be very interesting to see the actual outcome of any lawsuit–both on the issue of whether or not simply running a file sharing network is inducement and on whether or not there really is an antitrust claim here. If the case does go forward and the RIAA loses on the antitrust issue, it could have a big impact on the traditional labels, and could actually be a catalyst towards forcing them to accept the changing nature of the market. This is becoming a case well worth watching.
Limewire’s point about the Grokster is an important one. The Supreme Court did not rule that peer-to-peer file sharing is illegal per se. What they said was that there was ample evidence (from advertisements, internal company emails, etc) that Grokster intended to make a business of copyright infringement, and so the courts didn’t have to reach the question of whether running a peer-to-peer network, as such, constitutes secondary copyright infringement. Frankly, I think Limewire probably still deserves to lose, but they should at least have the opportunity to persuade the judge that unlike Grokster they legitimately expect to make money through more legitimate channels.
I don’t find the antitrust angle very compelling. There are lots of alternative music distribution services that aren’t being sued. eMusic and MySpace come to mind. Those services have been making a good-faith effort not to facilitate piracy, and as a result the RIAA has left them alone. If Limewire is guilty of secondary copyright infringement, then it certainly shouldn’t trigger antitrust scrutiny for the RIAA to enforce its members’ rights under the law.