medium limesA federal judge has entered a permanent injunction against LimeWire, pulling the plug on the once-popular provider of peer-to-peer file sharing software. This week, Judge Kimba Wood, of the U.S. District Court for the Southern District of New York, ordered LimeWire to immediately disable its searching, downloading, uploading, and file trading functionalities.

A spokeswoman for the company insisted that its digital music store will remain open, and she repeated previously announced plans to operate a subscription-based music service. LimeWire apparently hopes to stay afloat long enough to develop new file-sharing software that would comply with U.S. copyright laws.

While the injunction ostensibly allows the company to pursue these legitimate business models, this court has called two strikes against LimeWire – with another fastball hurtling towards home plate. The first strike came in May, when Judge Wood held LimeWire liable for inducement of copyright infringement. The court rattled off a litany of reasons for its decision: LimeWire (1) intentionally encouraged direct infringement, (2) distributed software that enabled infringement on a massive scale, (3) knew about the infringement, (4) marketed itself to users of Napster, (5) actively assisted infringing users, (6) failed to implement any technological measures to curb the infringement, and (7) relied on a business model of mass infringement.

The third strike will be a judgment for truly staggering damages. The statutory penalty for willful infringement ranges from $750 to a whopping $150,000. The evidence showed that at least 200 million users had downloaded the LimeWire software and that users downloaded some 3 billion copyrighted songs each month. Spoiling any suspense, the home plate umpire has already called the batter out! Justifying the injunction – with the damages phase of the litigation still pending – the court found it “virtually certain that [the plaintiffs] will be entitled to an enormous damage award.”

With strikes one and three something of a foregone conclusion, LimeWire desperately needed to at least foul this pitch off. In fact, this pitch should have been a much closer call. A permanent injunction requires the plaintiffs to show that (1) irreparable injury would otherwise result, (2) money damages would not suffice, (3) the remedy would be equitable, and (4) the injunction would not disserve the public interest.

The court found the first element satisfied in three different ways: LimeWire cannot possibly compensate the plaintiffs for the infringement already proved, let alone any further harm; the free distribution of copyrighted works undermines legitimate markets; and the unauthorized copies already downloaded will facilitate “generations of infringement” since each copy can in turn “spawn countless derivative infringing copies.” Likewise, the second element follows from the immense liability already incurred: absent sufficient money, money damages cannot suffice.

The third prong seems dubious though. The court found that the irreparable harm to plaintiffs “far outweighed” any hardship to LimeWire from the injunction. Really? The injunction will certainly force LimeWire out of business. Would a contrary ruling have bankrupted the major record labels? Hardly. Still, as the judge noted: “LimeWire cannot be heard to complain of injury, when its business is based on profiting from the copyright infringement that LimeWire intentionally induced.” Fair enough.

The fourth element, which the court deemed obvious, should provide pause. Does the copyright regime serve the public interest? More than mere pirates oppose strong copyright protections – Lawrence Lessig, for example. The “copyleft” crowd contends that strict enforcement actually curtails – rather than promotes – the “useful Arts”. The phenomena of Wikipedia and YouTube suggest that creative expression need not depend on economic incentive.

Perhaps an appellate court will yet reverse the injunction, but by then it will already have served its purpose: LimeWire will quickly fade to whatever netherworld P2P providers spend eternity, joining its already slain ancestors – Grokster, Aimster, and Napster.

On its homepage, now epitaph, LimeWire now sings a different tune: “Downloading or sharing copyrighted content without authorization is illegal.”

Nathan McGregor

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