RIAA puts developers in the dock

First they came for the networks, then they came for the developers.

Hoping to take advantage of last year's open-ended Supreme Court ruling on P2P software, the RIAA has filed suit against the two programmers behind the open source LimeWire project.

The suit, filed in a New York District court, accuses CEO Mark Gorton and Greg Bildson of LimeWire LLC of exerting "substantial influence" over the software project, accusing the two of inducement to infringe copyright, contributory copyright infringement, and common law copyright infringement.

The suit was filed on behalf of the Big Four labels, Universal, Warner, EMI and Sony BMG.

The first of these three charges is where the case breaks new ground.

As we reported at the time, when the Supreme Court heard the MGM vs Grokster case last year, it decided to punt the issue back down to the lower courts for settlement. The Supremes had no appetite, as they did in 1982 when they rejected the MPAA's attempts to ban the then-new VCR, to set a precedent. In Sony, the Supremes ruled that if a technology had substantial non-infringing uses, its sale should not be inhibited.

Last year the Supremes left Sony intact, but suggested that while an infringing technology was lawful, the company creating it, distributing it or profiting from it shared some moral responsibility for infringement. It rejected the common call, often raised in copyright cases involving new technology, that "guns don't kill people - people kill people".

The result was a flurry of litigation against the commercial P2P networks, with seven being targeted. Grokster went legit, eDonkey and WinMX rapidly shut up shop, Kazaa resisted only a little longer.

But the Supremes' subtle, and consciously open-ended ruling, confused many reporters at the time - and continues to do so today.

While the LimeWire network and the individuals responsible for operating it are vulnerable, open source software is a tougher nut to crack, and much of the development work for LimeWire is contributed by third-parties.

Which leads us back to where we started, really. This, the first case against distributors of an "infringement inducing" piece of software, does raise a further, fascinating question. At what point does "distributing" a piece of software begin? At the source code repository itself? ®