LimeWire Exec Can’t Use His Gut Feeling at Trial


     MANHATTAN (CN) – LimeWire, a file-sharing software company that shut down in October under the weight of a copyright lawsuit, cannot argue to a jury that its CEO had a gut feeling its business model was legal, a federal judge ruled Wednesday.




     On May 11, 2010, a Manhattan federal judge granted summary judgment to more than a dozen studios, led by Arista Records, entitling them to damages for secondary copyright infringement. The studios have identified 11,205 recordings allegedly infringed on LimeWire software, and seek statutory damages on 9,715 of those files.
     A trial to determine how much LimeWire owes in damages will start on May 3.
     U.S. District Judge Kimba Wood wrote in a six-page order on Wednesday that LimeWire creator Mark Gorton wanted to tell jurors that he had a “feeling” file-sharing was legal.
     “With respect to operating LimeWire, Mark Gorton has testified that it was his ‘feeling’ that ‘LimeWire was not at great legal risk,’ Wood wrote.
     “Gorton further stated that he had ‘a hard time’ seeing LimeWire as ‘an illegal thing or something for which I’m liable.’ … Gorton described this thinking as his ‘state of mind’ … In other words, Defendants seem to be suggesting that Gorton’s belief in the lawfulness of his own conduct comes from some innate knowledge of copyright law, and not from advice of counsel,” the order states.
     Arista and the other labels complained that LimeWire invoked attorney-client privilege every time they asked Gorton to back up his gut instinct with documentation.
     Wood agreed this was unfair.
     “Plaintiffs are correct that a party may not assert that it believed its conduct was lawful, and simultaneously claim privilege to block inquiry into the basis for the party’s state of mind or belief,” the order states.
     Wood granted the studios’ motion to preclude this testimony. Discovery in the case is ongoing.

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