CBS vs. Dish: Is 'Editorial Independence' Legally Significant?

The kerfuffle over a CBS subsidiary's "Best of CES Awards" happens less than a year after the company defended the right for CNET to publish articles about P2P software.

Is CBS inviting legal trouble by refusing to award - or review - products by companies with which it's engaged in legal action?

On Thursday, a brouhaha erupted after CNET announced that Dish Network's "Hopper with Sling" product wouldn't be eligible for its "Best of CES Awards." CBS Interactive, parent company of CNET, said in a statement that the product “was removed from consideration due to active litigation involving our parent company CBS Corp.”

That's in reference to the ongoing legal war over Dish's Hopper, an ad-skipping device that stores the TV networks' primetime schedule and which broadcasters believe is an unauthorized video-on-demand service.

The decision provoked Dish CEO Joe Clayton to put out his own statement, saying, "We are saddened that CNET’s staff is being denied its editorial independence because of CBS’ heavy-handed tactics. This action has nothing to do with the merits of our new product."

As strange, silly or self-promotional as it may be for Clayton to raise CNET's "editorial independence" in reference to an award that may have gone unnoticed by most, the episode does raise an interesting legal issue.

In its statement, CBS also said, "We will no longer be reviewing products manufactured by companies with which we are in litigation with respect to such product.”

But are there any consequences for such a posture?

In early 2011, CBS Interactive was hit by a lawsuit by Alki David, the same guy whose TV streaming service has been pursued by networks in court. Partly out of revenge, David teamed up with a handful of hip hop artists including members of 2 Live Crew and Ying Yang Twins to assert some "hypocrisy" on CBS' part -- that the interactive division contributed to the growth of copyright infringement by distributing Limewire on its subsidiary, Alki's suit argued that CBS was vicariously liable for copyright infringement by publishing articles on CNET that allegedly promoted the downloading of P2P software and taught users how to get around copyright protections.

In March of last year, CBS brought a motion to dismiss the lawsuit and made a fairly sensible argument.

The theories underpinning the lawsuit, the defendant said, amounted to "an expansion of liability that has never been recognized and that would create grave uncertainties for writers and publishers -- including search engines, web encyclopedias, blogs and most technology journalists -- that seek to communicate truthful information about emerging technologies including P2P file-sharing services."

CBS Interactive also said that it wasn't alleged that they had any control over any direct infringement, and in more court papers, CBS gave another argument why the lawsuit should be dismissed:

"To the extent that the alleged 'inducement' is encouraging people to infringe copyrights with P2P software (e.g., by writing articles about P2P capabilities or by demonstrating comparative features with an unauthorized use of a specific song) then the Complaint fails because it identifies no actions by CBSI directed at Plaintiffs or their works...The expansion of liability to include tertiary parties like CBSI for whom such allegations cannot be made would chill speech and technological innovation and warrants restraint."

A judge declined to dismiss the lawsuit, doubting that "a finding of inducement in this case would make it difficult to counsel future parties on the proper boundaries of editorial content."

Now, in the kerfuffle over the "Best of CES Awards," CBS is exerting some control over CNET editorial. While it may be perfectly understandable that the corporation doesn't want to promote what it perceives to be a distasteful product, the implications for exerting such control have yet to be fully determined. Do articles that pass through the filter now hold more legal responsibility not to induce infringement? Or is CBS' only obligation to protect its own rights and property?

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