In a motion filed yesterday, Disney, Fox, Paramount, Warner Brothers and Viacom filed a motion for partial summary judgment asking Judge Baer to rule that LimeWire intentionally fostered infringement of the studios’ copyrights in movies and TV shows by distributing the LimeWire peer-to peer file sharing software. In May of 2010, in Arista – an analogous and hotly contested suit brought by thirteen record companies – Judge Wood found LimeWire liable on summary judgement, finding that the evidence of intent to foster infringement of musical recordings was “overwhelming.” Ultimately LimeWire settled that case – for $105 million – during a trial to determine damages. The studios’ motion relies heavily on that decision, arguing that the legal and factual issues are identical, and collateral estoppel therefore compels the identical result.

In their motion, the studios anticipate LimeWire’s argument that ” the issues in the two cases are not identical because the Arista case involved infringement of music whereas this action involves infringement of motion pictures and television programs.”

In Arista, the only relevant issue was whether, under Grokster, the LW Defendants distributed LimeWire with the object that it be used for copyright infringement. Grokster, 545 U.S. at 918-19. Grokster liability is not dependent on the nature of the copyright infringement or the identity of the copyrighted works. As the Supreme Court (and subsequent courts) have made clear, it is the distribution of the software with culpable intent that constitutes the unlawful inducement of copyright infringement. Grokster, 545 U.S. at 940 n.13; Fung, 2009 WL 6355911, at *10 (same). The standard is content neutral. Grokster, 545 U.S. at 940 n.13.

The Studios also argue that a decision in this case different from that in Arista would “not comport with principles of stare decisis.”