Wednesday, May 5, 2010

Cnet Editorial Staff Comparison Tests of MP3 Sharing Software including Kazaa, Morpheus and Grokster Using Actual Artists as samples

Article Published on Cnet 7/27/2001 by Senior Editor Eliot Van Buskirk

"File Sharing Smackdown"

The purpose of this Cnet article was to compare Internet Music File Sharing devices (downloads) which were distributed by Cnet to discover the best system of providing free music.

I argue that the intent of Cnet is obvious judging by the searches that were tested and published; Britney Spears, Beatles, Run DMC, Metallica, Megadeth, Radiohead, Miles Davis and Johnny Cash.

Cnet distributed the devices (including Morpheus, Kazaa and Grokster), the file sharing software. Cnet ( and ZDnet) openly encouraged the use of these devices to induce copyright infringement of music. I argue that the numerous editorial articles such as these, published on Cnet websites over a period of years, establish clearly the intent to distribute the devices in a manner to induce and encourage Copyright infringement on a massive scale.

One Device in this review, Kazaa, was downloaded an Astonishing 325 Million Times from Cnet Downloads alone. Possibly resulting in BILLIONS of copyright infringing music files shared. Cnet offered "Paid Upgrades" for Kazaa and many other similar devices, however I have no numbers of those total sales or what fee was earned by Cnet.

The Statute of Limitations on Electronic Piracy is five years after the last continuous infringing act. The Supreme Court decision was handed down in the Case of MGM vs Grokster (June 2005). Which still leaves possible complainants approximately 6 weeks to decide if Cnet/ZDnet was possibly liable in the MGM vs Grokster Action.

(However, I argue that the infringing actions of Cnet persist to this day through actual versions of Kazaa and Kazaa accesories still offered for download.)

Cnet offered and promoted Grokster, Morpheus and Kazaa, the Principle Defendants in the case of MGM vs Grokster. The software Morpheus and Kazaa were represented in this test sampling. Inducement liability turns on the combination of "affirmative acts" and "intent" to encourage or foster infringing activity.

Cnet and DZnet's unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. I argue that such a message is shown here in the Exhibits below.

I argue that this article "Smackdown" clearly demonstrates the key components of Contributory infringement "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable.

The Cnet and ZDnet offered the Software to attract traffic to it's websites for increased advertising revenue. The increased traffic to the sites would result in a greater market value to the site. Users would be lured to return to the sites for software updates and add-on software programs.

I further argue that Cnet is clearly shown to have knowledge of the infringing activity. Cnet Regularly published articles such as "Smackdown", exhibited here by screen captures of actual web pages. I argue that the testing of the devices utilizing actual artists names induces users to download the software, distributed by Cnet, then commit acts of infringement as demonstrated. Cnet materially contributed to the infringing conduct. I argue that Cnet is liable under MGM vs Grokster as a contributory infringer.

In its June 2005 ruling in MGM v. Grokster, 125 S.Ct. 2764 (2005), the Supreme Court announced a new form of secondary liability, which it described this way:
"One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

NOTE: These Tests were conducted again several months later. The next "File- Sharing Smackdown, Part Deux" Published February 1, 2002 as part of a continuing series. That article and results are exhibited as screen captures below the first "File-Sharing Smackdown". ( Three different "Smackdowns are represented here. There must have been others, as announced in the third one.)

Click ANY of the Vintage FAIR USE Screen Capped Images below for a larger view. Notice "File-Sharing Smackdown" as the third listed in the "Column Archive" below, bragging to use "18 different band names". Cnet could have VERY EASILY used public domain works, or Independent Music Groups that were freely distributing their music. I argue that demonstrating actual famous artists and band names show clear intent of purpose. Particularly by choosing "Metallic" as a test subject.

Click Image to Enlarge, File Sharing Smackdown. Admitting the RIAA's Choke hold on Napster and admitting that the tests are to determine the Current File-Sharing Champ!

This MP3 Insider STILL IS PUBLISHED to this Day on Cnet! Here is the Link PLEASE check it out!

Click Image to Enlarge, File Sharing Smackdown

The article explains that Napster and Scour had been sued into irrelevance and this test was to determine the best available suitable alternatives. I will argue in other areas of this comprehensive news report that Cnet and ZDnet are liable, even today, for third party copyright infringement in Napster.

Artists Represented included;

Britney Spears, Beatles, Run DMC, Metallica, Megadeth, Radiohead, Miles Davis and Johnny Cash.
Metallica is consistently mocked in various articles and reviews for supporting artists copyrights. Metallica had recently received much publicity in this area. Metallic had issued notices to block their content on the various services, but obviously to little effect.

Systems Compared were Gnotella, Limewire, Bearshare, Gnucleus, Audiogalaxy, Music City Morpheus, WinMX, and Kazaa

Click Image to Enlarge, File Sharing Smackdown

Below is the Actual Download page for Gnotella as it STILL exists today on Cnet Downloads! Click the link! ( Tutorial Several Images below BRAGS over 1,000,000 Gnotella Downloads. What happened to them???)

Screen Cap first Week of May, 2010
Below is the Gnotella version linked from the Smackdown testing. The software had over 2.5 Million Downloads, HOWEVER the Gnotella offered to this day on has less than a thousand downloads. It seems like it should be the same one. They were uploaded a day apart according to the dates. Well, that doesn't matter as both upload dates show continuous availability since 2001. ( Again, Tutorial Below for Gnotella Brags "Over 1,000,000 downloads).

Screen Cap on 11/21/2001

This Senior Editor of Cnet concludes, "It's as easy to find copyrighted songs as it was in Napster's heyday, as long as you know what to use".

( In this case Gnotella won, edging out Audiogalaxy)
Cnet still offers this Gnotella software download

Click Image to Enlarge, File Sharing Smackdown
The next "Filing Sharing Smackdown, Part Deux" Published February 1, 2002 as part of a continuing series. Again, the Following screen Captured images show the same overt action to induce viewers to commit acts of copyright infringement with these devices by offering ACTUAL known Bands/Artists as representative samples. Two Runner Up Choices "Morpheus" and "Grokster" were recommended, however the winner was Bearshare. The two runner up recommended choices were defendants in the famous MGM vs Grokster case.

Although I offer FAIR USE Vintage screen caps as evidence, The Original Article is available on Cnet TODAY! Click the link to read it THERE!

Notice the Band/Artists names include Metallic once again.

Please note that the following "Smackdown Test", Still using actual known recording artist's names as test subject samples mentions to subscribe to the MP3 Insider Newsletter for Additional Tests. ( I have screen caps on ONE of these ACTUAL Newsletters Sample linking to Smackdown Deux)

In MGM v. Grokster, the Supreme Court found that sending a newsletter with links to news articles that mentioned infringing uses might be an "affirmative act" for inducement purposes. I have just one complete sample, as several screen captures of Cnet's but none yet for Dznet

I have also found an advertisement, from 8/15/2000 , Cnet Newsletter screen capture offering the MP3 Insider Dispatch which may yield valuable information should discovery action take place.

Cnet Vintage screen capture of the Gnotella File Sharing Tutorial. Screen Cap from 10/7/2001 CLICK on any image to Enlarge!!! NOTICE: The tutorial Brags over 1,000,000 DOWNLOADS and that MUST have been BEFORE 10/7/01, the date of this screen cap.

Click the Images to Enlarge. File Sharing Smackdown Update from 9/25/2002

These are FAIR USE Vintage Screen caps as originally published. Click the link to see the SAME REVIEW exists to this day on Cnet!!! Click this Link!!!

This is the fourth Smackdown, and the FIRST to state that Cnet does not condone copyright infringement, yet continues to use obviously copyrighted works as test samples. They could have easily used independent bands. NOTICE that the obviously copyrighted m"ovie "Star Wars" was added to the "Smackdown" testing.
This fourth(?) "MP3 Insider File Sharing SmackDown" still exists today on Cnet with the original testing results. I have access to less than 10% of the historic pages of Cnet and ZDnet. There MUST be substantially more similar material.

Cnet offering On-Site MP3 Searches in Early 2000's. Here they encourage the search for the Beatles. Click to try! Screen Cap from 10/18/2000

Cnet Beatles Search Results Screen Cap. The instructions are not clear. At this point, it seemed that you simply clicked the search result link for an instant download without downloading any software. I am uncertain. They switched sites in this MP3 Search page OFTEN too. As the search choices were sued out of existence, others were quickly added.

Cnet Article Screen Caps July 5 2001
"Looking For the Next Napster"

This is a MASSIVE review that covered several pages. I'm just offering as evidence and for critical review two FAIR USE screen caps. This is evidence in yet another editorial article of offering readers and customers a guide to the best copyright infringing file sharing system by offering results based upon REAL Artists and known Copyrighted songs. ( Click on ANY Image to Enlarge)

This is the "Test Chart" from the 2001 Cnet Article "Looking for the Next Napster".
Notice the liberal use of Known Copyrighted works used to conduct the tests. Of course, they used a Metallica song "Enter Sandman" to be part of the test. I argue that this article contributes to Cnet's knowledge of infringing activity, Intent to encourage others to pirate copyrighted songs and an affirmative act to encourage copyright infringement by third party users. Demonstrating file-sharing Software that Cnet THEMSELVES offered for download to the end user. With OBVIOUS direct links for the reader of the reviewed software to their own Cnet Downloads site.

MGM vs Grokster
"One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

Songs used as Test Subjects;
Metallica "Enter Sandman"
Britney Spears "Don't Let Me Be the Last to Know"
The Beatles "Let it Be"
John Coltrane "Giant Steps"
Beethoven "Moonlight Sonata"