Thursday, May 6, 2010

I argue that Cnet is Liable for Third Party infringement as Decided by MGM vs Grokster

I am Mike Mozart of JeepersMedia a Product Designer and Reviewer on YouTube. I am not an Attorney. The following News Report is based upon my Personal Opinion. I have had access to probably less than 10% of the historical record of Cnet and ZDnet. However, I did glean quite a lot from what little that I had available.

I argue that the websites CNET and DZnet, now part of CBS Interactive, a division of CBS, Owned in large part by Sumner Redstone's National Amusements, are liable for Copyright Infringement in the case of MGM vs Grokster, as decided by the Supreme Court.

Sumner Redstone is an Outspoken Advocate of copyright holder's rights and is, in large part, the principle owner of both Viacom and CBS. Sumner Redstone is also the Chairman of both corporations.

The Defendants in the MGM vs Grokster Supreme Court Ruling included the P2P Internet File Sharing Service, Grokster as well as the Music Sharing Services Kazaa and Morpheus

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."

Both Cnet and Zdnet distributed these devices (software) and were, in fact, a primary distribution source for many of the other notorious MP3 sharing programs, such as Napster.

In Cnet's Software Policy Statement:

File hosting

"In order to ensure the safety and integrity of our download library, all files submitted to CNET Downloads must be hosted on our servers. Limited exceptions to this policy are made on a case-by-case basis, and at our sole discretion."

Cnet's offerings are thoroughly vetted for malware, viruses and functionality before being offered.

I argue that Cnet is liable as a distributor of these infringing devices (software downloads), due to presented evidence in this Blog of Cnet and Zdnet's Intent, Inducement and Affirmative Acts of Infringement. Cnet still distributes Kazaa Lite Resurrection as well as beneficial performance boosting add ons to this day, helping to keep the Kazaa System alive.

I argue that Cnet may be liable for the third party infringement of Napster users back to the year 2000. Although there is a 5 year statute of limitations on electronic copyright infringement, Cnet until this day offers devices which are still being continually downloaded to use the remnants of Napsters original system. ( Notably Napigator). I believe that the Statute of Limitations includes the entire infringement up until the last infringing act. Cnet has NEVER stopped offering software to access the Napster system and users.

However, the devices ( software) at the heart of my arguement are the MP3 File Sharing Services Grokster, Morpheus and Kazaa.

Cnet and DZnet distributed hundreds of millions of these devices in the form of immediate software downloads from their respective sites. I argue that both Cnet and DZnet had promoted these devices, and several dozen others, in ways to encourage the users to infringe copyrights.

These P2P File Sharing Devices were downloaded AT LEAST a Half BILLION times from Cnet Downloads alone.

All Images are Fair Use. This Cnet Screen Cap from Feb. 16 2004 shows an ASTONISHING 326 Million Downloads solely from the Cnet Downloads Site. Many more Exhibits such as this Screen Capture will be revealed. CLICK on Images in this Entire Report to Enlarge GREATLY!

Click Image to Enlarge. Grokster as Distributed by Cnet before the MGM vs Grokster Decision. Software distributed by Cnet over 10 million times.

NOTICE: Click the link below to be taken to a Cnet editor's TEST RESULT CHART comparing Grokster against of file sharing services using ACTUAL known copyrighted bands and recording artists to determine the most effective services.

NOTICE: Image below clearly show the Cnet Button Embedded Directly on the Grokster Homepage! Screen Cap on March 22 2003 Cnet and their servers were the primary distribution source of this File Sharing Software. This HAS been confirmed by my recent conversation with the former company president of Grokster, Wayne Rosso. Wayne mentioned that the Grokster site was really never advertised or promoted except for the software simply being uploaded onto Cnet to be available for download. Cnet's editors REVIEWS primarily and almost exclusively drove the Downloading activity to over 10 million users.

Click Image to Enlarge. Morpheus 4.9 as Distributed by Cnet over 130 Million Times before the Decision of MGM vs Grokster

Actual Screen Cap of the Former Morpheus File Sharing software page from October 2002. To "Click the Download Button" actually brought the user directly to the site itself. Directly to the Morpheus Software Page.

I will argue through historical record of Fair Use Screen Captures of Actual vintage and present website pages to illustrate the editorial practices and download choices of Cnet and ZDnet to be evidence of;

Inducement Liability

The Editors of Cnet Performed Tests using Actual Copyrighted Bands and Artists to help users determine the BEST MP3 Gathering Resource ( Kazaa, Grokster AND Morpheus are all tested in this manner, as shown in this Blog Posting with Exhibits of actual Artists and Results Charts)

Would a reasonable person believe that the PREVIOUSLY mentioned 326 Million Downloads of Kazaa, 133 Million Downloads of Morpheus and 10 Million Downloads from Cnet ALONE contributed a large proportion of the 20 Billion Downloads of Copyrighted Material in the year 2005 mentioned in the following article excerpt? Read the entire article on BBC!

I argue that the Cnet and DZnet intended to promote copyright infringement.
Inducement liability turns on the combination of "intent" and "contributory infringement" to encourage or foster infringing activity. In other words, in order to prevail on an inducement theory, a copyright owner must prove each of the following;

Direct Infringement: There has been a direct infringement by someone.
This direct infringement may be demonstrated by the comments on the Cnet and DZnet Sites.

Affirmative Act: The accused inducer has made statements or taken other active steps directed at encouraging infringing uses.

• I argue that evidence of Affirmative Acts may be found in this blog posting of a MP3 File Sharing comparison test among several software choices offered by Cnet.

Cnet Feature Article Describing Legal Copyright Holders such as the RIAA as "Super Villians" and offering Alternatives to Napster so that Music Lover's could Download to their Hearts Content.

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 samples as screen captures of Cnet or Dznet Newsletters, ALSO, I have a 8/15/2000 screen capture from Cnet offering an MP3 Insider Dispatch newsletter which may yield valuable information should discovery action take place.

Actual Digital Dispatch Newsletter from Cnet Announcing results of the MP3 Smackdown using Real Bands to test the effectiveness of various file sharing services. The first screen cap shows the top of the Newsletter, the second shows the actual announce and link to the MP3 Insider Smackdown Article. Click ANY Fair Use Image to Enlarge.

Cnet hosted a Comments and Questions board and other forums where users talk directly to each other about infringing uses of the devices (software). These message boards were moderated. There are literally thousands of pages that no longer exist online. The following screen capture is from 10/5/2001, The original pages are likely in Cnet's archive.

Cnet and ZDnet offered Downloaders the abilty to rate the effectiveness of each service. Cnet and ZDnet allowed users reviews that clearly and continually mentioned how WELL software worked to find SPECIFIC copyrighted materials.


I argue that Cnet and DZnet intended to promote software downloads ( distribution of devices) to induce copyright infringement.

DZnet Openly offered advice for the Best Devices for "Music Lovers" to use "To Break the Law" from various P2P software offerings. See the Images and Descriptions as Evidence

Cnet performed Performance Tests on Devices Specifically using known copyrighted artists and bands. See the Image Exhibits and Descriptions as evidence to support my argument.

Cnet Feature Article Describing Legal Copyright Holders such as the RIAA as "Super Villians" and offering Alternatives to Napster so that Music Lover's could Download to their Hearts Content.

To Achieve Increased Advertising Revenue
The Cnet and ZDnet offered the devices (software) and promoted infringing activity to attract traffic to it's websites for increased advertising revenue. The increased traffic to the sites would also result in a greater market value to the site. Users would be lured to return to the sites for software updates, add-on software programs and Editorial Advice to facilitate copyright infringement. Users needed to register on both Cnet and Dznet with an email address in order to download the software, ( distributed the devices). As evidence of the numbers involved, I refer the reader to this image showing that Kazaa alone ( Official Download without the "Add-ons) with 360 million plus downloads added AT LEAST 360 Million Page views. Then add on the Tutorials, Upgrades, etc.

Failure to Remove Devices from Download Offerings
Cnet and ZDnet continued to distribute devices (software) when editorial statements by Editors and Staff of both CNET and DZNET confirm that the devices (Software) were known to be used primarily for infringing purposes and, yet continued to offer to distribute the devices (software). (I argue that by NOT removing the devices from distribution, while continuing to promote the devices for copyright infringing purposes may bring liability for Vicarious Third Party Infringement.)

I argue Vicarious Liability under Gershwin Publishing Corp. v. Columbia Artists Mgmt, that involve the imposition of vicarious liability on an agent based on the infringing acts of the agent’s principal. I argue that Cnet acted as an agent of the direct infringers. Cnet knowingly engaged in “pervasive participation in the formation and direction” of the infringing activities.

• Cnet offered paid promotional top result search listings. By Cnet's own account at the time, they claimed that downloads would be expected to rise at several times the normal rate. I argue that maintaining the software, then distributing that software, while being paid to promote it, creates an Agent/Principal relationship. Moreover, I argue that many "Upgraded Versions" of the free software were available for purchase from Cnet Downloads and one would expect that Cnet kept a portion of the proceeds as a commission. I have no direct evidence of this ever happening, however a reasonable person would expect such an arrangement.

• Cnet has reviewed the various P2P software in ways to encourage copyright infringement by third parties. The success or failure of the File-Sharing devices was based, in large part, on favorable reviews by Cnet Editors. There is clear evidence of greater download activity for a software product AFTER such a positive review.

• Cnet created and published editorial content comparing the prowess of the various devices for finding copyright infringing music (MP3 Smack Downs). Often, the comparison testing articles of MP3 file-sharing articles used "Napster" as the attention getter in the title to appeal to former Napster users. For example, titles that were suggesting "The Next Napster".

• Cnet offered moderated and un-moderated forums were users could discuss the P2P software.

• Cnet HOSTS the software such as Limewire, on it's own servers for clean, uncorrupted downloads. The software is vetted by Cnet staff to be virus free and tested for functionality. The Editorial reviews suggested specific ways to improve the functionality of the software.

• Evidence of Cnet Download Buttons embedded in Software Owners websites as the EXCLUSIVE download source.


Statement by ZDnet staff that much of the music, is, in fact, pirated.

Screen Cap from April 24 2000, ( Click image to Enlarge)

Cnet offering for Distribution Kazaa Software that is still functional today in, Kazza Lite Resurrection

Cnet and ZDnet Recommended the best alternative file sharing sources as devices (software) were removed from service by legal means.

• Recommending the best Alternatives to Napster for Music Lovers to "Break the Law"

Cnet Feature Article Describing Legal Copyright Holders such as the RIAA as "Super Villians" and offering Alternatives to Napster so that Music Lover's could Download to their Hearts Content.

• Front Page promotion for the 20 best Alternatives to Napster if it gets shut down.

Cnet and DZnet attracted infringers as regular web visitors by offering editorial reviews to guide copyright infringers to the Cnet offered online comment forums for uses to discuss and recommend the infringing devices ( software). Cnet and DZnet offered substantial Tutorial instruction to induce copyright infringement.

• Read this Blog Posting where Alternatives to Napster are compared based upon ability to Procure search results for copyrighted bands and Artists

Contributory Infringement Liability

Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable.

Notice "Aiding and abetting Remark in Screen Capture below from MP3 Insider Column 3/24/2000

Or, as the courts have put it, "One who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a
contributory infringer."

So, in order to prevail on a contributory infringement theory, a copyright owner must prove each of the following elements:

Direct Infringement: There has been a direct infringement by someone. At least some Grokster, Morpheus, Kazaa users were direct infringers, because they distributed and reproduced copyrighted music without authorization. This was reported as Fact in Cnet news reports and by the writers and editors of Cnet Music.

Knowledge: Cnet and DZnet must have known of the underlying direct infringement. This element can be satisfied by showing either that the contributory infringer actually knew about the infringing activity, or that he reasonably should have known given all the facts and circumstances.

Both Cnet and DZnet knew of the infringing activity and admitted copyright piracy, based on;

Published articles and statements of the editorial staff. As a news organization, Cnet reported on the legal actions daily regarding the various file sharing services. This is shown by the fair use screen capture below. News Reports dated August 4 2000, Click image to enlarge.

An extracted Statement Published below by Cnet 4/24/2000 entitled "How Napster and Friends will turn the Web Inside Out", that CLEARLY states that much of the music traded is, in fact, Pirated.

•Cnet Feature Article Describing Legal Copyright Holders such as the RIAA as "Super Villians" and offering Alternatives to Napster so that Music Lover's could Download to their Hearts Content.

Article Excerpt from ZDnet describing Napster as a "music-piracy gangster application".

•Article on ZDnet stating that the software is used to break the law.

• Article offering a tutorial to overcome a Napster Ban. As the courts ruled against Napster, the system was changed to ban users that shared copyrighted music. ZDnet offered a tutorial to work AROUND the ban to facilitate known copyright infringers to start downloading music again.

The appearance of well-known Song Titles, Popular Movies and other Copyrighted works in certain promotional screen shots used by Cnet and ZDnet. ( Many appear in this blog).

Copyright Protected Madonna Songs clearly visible on MP3 Rocket, in a new Screen Shot to Promote the service.

• The following link to the ZDnet offered MP3 Rocket Software show Madonna Songs;inner

• Screen Cap of the same MP3 Rocket Image on this Blog as a Fair Use Exhibit and Evident in case the Original is Removed

Use of Copyrighted Works being clearly shown in a ZDnet screen shot Promoting "Torrent Rocket".

• Clearly Visible on ZDnet's Website, ( Click the Image).;col1

• Image preserved on this Blog as a Fair Use Exhibit and to Preserve the image if it is removed.

As evidence that the Staff of ZDnet had knowledge that these File Sharing Services were used to for Illegal Downloads.

• Statement by ZDnet Staff Writer to users of Napster, "Don't break the law. ( Too often!)

Material Contribution: The accused contributory infringer caused or materially contributed to the underlying direct infringement. Merely providing the "site and facilities" that make the direct infringement possible can be enough.

Unlawful Objective

I argue that 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.
Each Company Boasted itself to a Superior "Go To" destination for File Sharing Software to satisfy the known public desire to downloading copyright infringing media. This unlawful objective is shown by Promoting Software known to be primarily used for Media Piracy, Reviewing piracy software for maximum effectiveness then Distributing Copyright Piracy Software by direct Downloads.

I argue that such a message is shown here.

Three features of the evidence of intent are particularly notable.

First, both Cnet and DZnet Showed themselves to be offering devices (Software) to satisfy a known source of demand for copyright infringement, the market comprising former Napster users.

As the Courts Ruled in Favor of the Rights Holders against Various File Sharing Services such as Napster, Both Cnet and DZnet demonstrating a Pattern of Recommending and Promoting File Sharing Software which were available for immediate Download which would Achieve the SAME or Superior Results.

•Cnet Feature Article Describing Legal Copyright Holders such as the RIAA as "Super Villians " and offering Alternatives to Napster so that Music Lover's could Download to their Hearts Content.

• ZDnet Article discussing the Best Alternatives to the Doomed Napster

• Cnet Articles Discussing the Best Alternatives to Napster using Actual Bands and Artists to demonstrate effectiveness of suitable alternatives.

I argue that Cnet and DZnet's efforts to supply services to Napster users, then Former Napster Users, indicate a principal, if not exclusive intent, by offering these devices (software), to bring about massive copyright infringement.

Refer to the Top Ten PC Downloads for the Week ending June 3 2001. ( Blow, Click any image to Enlarge.) This is a LOT of Web traffic in the post Dot Com Bubble days. These are figures for just ONE random week.

Second, Cnet or DZnet could have effectively stopped their involvement in the File Sharing Piracy by discontinuing the promotion and distribution of the devices (software). Neither had the ability to control the end user use of the devices using methods such as Blocking Copyrighted Media, or banned users. Discontinuing the distribution of the devices would be the logical solution as per this statement:
Click Image to Enlarge Screen Cap, Fair Use Screen Cap from 2/23/2001

Cnet and ZDnet offered advice and tutorials as well as additional devices( Software) to bypass blocks and filters added to the devices functions. Allowing banned users to resume consumption of pirated materials.

A Tutorial on Cnet describing how to continue using Napster Services in spite of a Judge's Order of Injunction against the File Sharing System.

A Turorial on ZDnet offering advice and a tutorial to bypass a block by your college or university to use the file sharing services of Napster.

I argue that rather than discontinuing the distribution of the p2p file sharing devices, both Cnet and ZDnet, have actually been continually engaged, to this day, in the Offering, Promoting and Distributing by immediate download additional "Add On" Software to Improve the Speed and Effectiveness of Massive Media Piracy devices. Each offered expert Employee reviews of relative effectiveness with Screen Shots that Actually showed the availability of Mass Amounts of Copyrighted material on a Worldwide Scale.

Offering, Promoting and Distributing innovative ways to circumvent Court Rulings allowing the continued acquisition of Pirated Media through the remnants closed Media Pirating services as Napster and Kazaa.

A Tutorial on Cnet describing how to continue using Napster Services inspite of a Judges Order of Injunction against the File Sharing System.
Tutorials explaining effective Methods to circumvent efforts to block copyright infringing users this evidence underscores their intentional facilitation of their users' infringement.

As Further Complement to the direct evidence of Unlawful Objective, Both Cnet and ZDnet sold revenue earning advertising space on the pages of their respective websites. The more their websites are used, the more ads are viewed and the greater the income from advertising revenue. Since the desirability of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows has benefited in large part by the Distribution of a constant stream of new and updates devices ( Software) and tutorials of a multitude of infringing devices. I argue that this evidence alone would justify an inference of unlawful intent.

Both ZDnet and Cnet feature file sharing software as "Promoted" search results for which there must have been financial consideration. This is Evidenced in the history of MP3 Comet being offered in this Manner. MP3 Rocket was reviewed by Cnet Editors AND has promotional Screen Shots showing Copyrighted works available for download. Wouldn't Vicarious Infringement occur if the device ( The Software) was promoted in this manner to induce copyright? Perhaps by increasing page views to make the site more valuable, or through any income derived on a per download fee from the developer? Perhaps it could be argued that vicarious liability would attach if the distributor continued to disseminate the software with full knowledge of it's overwhelming copyright infringing use, but profited from it's continued demand for downloads.

Click on the Image to Enlarge. Cnet Search result for MP3 Comet from 2007 showing "Sponsored" which allowed it to be at the top of the search results.
I am investigating whether Cnet actually earned revenue from at least some of these downloads. Many of these P2P software developers offers a cash incentive to acquire additional signed up users. I have found some with affiliate programs offering sharing of advertising revenue to affiliate websites. Does Cnet earn or has Cnet earned ANY income by this method? The p2p file sharing site imesh did offer it.

FAIR USE Screen Cap from February 9 2005 showing an ASTONISHING 87 Million Downloads directly from Cnets own servers.

Screen Cap showing Cnets Download embedded button directly on the imesh P2P File Sharing Homepage as THE SOURCE for the software. Screen Cap January 25, 2002

Imesh Landing page from Aug 23, 2000 Bragging a MILLION downloads from (Click on ANY Image to enlarge)

On September 18, 2003 the RIAA (Recording Industry Association of America) sued iMesh for encouraging copyright infringement[3].

iMesh settled the lawsuit a little over 10 months later on July 20, 2004, where according to the RIAA, the terms of the settlement were that iMesh would pay them US$4.1 million and could continue operating as normal (unlike Grokster) whilst implementing a paid service (iMesh 6.0).. iMesh had first agreed to have the new service available by the end of 2004, however this was pushed back towards the end of 2005 due to technicalities

Imesh operates as a legal music site today.

I argue that in addition to the intent to bring about infringement and distribution of a devices suitable for infringing use, (the inducement theory requires evidence of actual infringement by recipients of the device, the software in this case). There is continuing evidence of such infringement on a gigantic scale. The News Stories printed on Cnet Support the claim of Knowledge of the infringing activity. Click the link below to view a Napster "Big Picture" time line of stories as reported by Cnet themselves.

Cnet reported with great interest the legal proceedings regarding the software devices that they distributed. As each device was being beaten in courts, new replacements to satisfy file sharing needs were offered.

Notice this Cnet Editor Recommended file sharing program call QTrax Max. This is a screen shot of the QTraxMax Home Page on 11/25/2002 NOTICE the Cnet Download Button.

Notice at the time of the glowing Qtrax Editor's Review, Qtrax was a Sponsored Search Result to fall first in the 99 MP3 File Sharing Software Search of Cnet downloads.
Actual FAIR USE Screen cap of Cnet Downloads search result from 11/11/2001, Click on ANY Image to Enlarge!

Actual Screen Shot shown on Cnet Editor's Review of QTrax Max to Demonstrate the QTrax Max System, ( Notice Copyrighted Songs IN DEMO!)

This Editors Review in 2002 was NOT as glowing as the Earlier Review. Perhaps because so many OTHER more fully featured File Sharing Systems came into the Cnet Fold?

The Facts page on Cnet Regarding Qtrax, Notice the Comment by a happy user declaring it to be BETTER than Napster!

Cnet Screen Cap taken 11/20/2001 of Qtrax Features and Download Page. Click on ANY Image to Enlarge.

But I MUST add that Qtrax very soon after these preceding screen shots, voluntarily shut down to redesign the system and make deals to give the artist's royalties. Qtrax did restart the system later as a legitimate site and has gone through many obstacles along the way.
Cnet Just kept on Business As Usual. This voluntary shutdown was actually pointed out in one of the Cnet Editor's "MP3 Smackdown" MP3 Copyrighted Music File Sharing ability comparison Tests.

I argue that this evidence underscores Cnet and ZDnet intentional facilitation of their users' infringement.

In recent years, Cnet and Zdnet have been much more cautious about statements to encourage copyright infringement.( However Cnet stills shows copyrighted works in many Screen Shots of Software and Use actual Famous Copyrighted songs to test p2p File Sharing systems in the editor's reviews.)

However, In MGM vs Grokster;

Grokster attorney Richard Taranto argued in court that the network should be judged by its current behavior, not its actions several years ago when it was initially trying to attract users.

But Souter termed that argument "ridiculous." Even if Grokster no longer advertises the fact that users can easily find copyright material, it still benefits from its past advertising, he said.

"Sales of a product on Friday are a result of inducing acts on Monday through Thursday," Souter said.

I will also argue that the Actions of Cnet also invokes the RICO statutes

RICO statutes cover ongoing enterprises or conspiracies with continuing violations of law, which I will argue that this pattern of action by Cnet fits into. I will argue that the Copyright laws are violated dozens of times each second by devices downloaded from Cnet. Software distributed and promoted for that purpose in a continuing Pattern of intent and inducement since Napster existed. I will argue that ongoing pattern is within the definition of a continuing criminal enterprise and subjects the defendants to RICO liability."