Advanced Copyright Issues on the Internet - Fenwick & West LLP

how “probable” the noninfringing uses of a product are. The Ninth Circuit stated that it simplydid not read Sony as narrowly as Judge Posner did. 1410Because there was no genuine issue of material fact that there were substantialnoninfringing uses of the defendants’ software, the court concluded that the “reasonableknowledge of specific infringement” requirement was to be applied, and turned to an analysis ofwhether the copyright owners had raised sufficient genuine issues of material fact to satisfy thathigher standard. The Ninth Circuit agreed with the district court that the plaintiffs’ notices ofinfringement were irrelevant to the knowledge prong because they arrived when the defendantsdid nothing to facilitate, and could not do anything to stop, the alleged infringement of thespecific copyrighted content. 1411 The court emphasized the great import of the software designto its holding. Unlike the Napster case, in which Napster maintained a centralized set of serverswith an index of available files, no central index was maintained by the defendants’ software.Accordingly, even if the defendants were to close their doors and deactivate all their computers,users of their products could continue sharing files with little interruption. 1412Turning to the material contribution prong, the Ninth Circuit agreed with the districtcourt’s conclusion that the defendants did not provide the “site and facilities” for infringementbecause the defendants did not provide file storage or index maintenance on their computers, nordid the defendants have the ability to suspend user accounts. 1413 “Rather, it is the users of thesoftware who, by connecting to each other over the internet, create the network and provide theaccess. ‘Failure’ to alter software located on another’s computer is simply not akin to the failureto delete a filename from one’s own computer, to the failure to cancel the registration name andpassword of a particular user from one’s user list, or to the failure to make modifications tosoftware on one’s own computer.” 1414The court also found that the defendants had not materially contributed to theinfringement in any other manner. StreamCast maintained an XML file from which usersoftware periodically retrieves parameters, including the addresses of web sites where lists ofactive users were maintained. The owner of the FastTrack software, Sharman, maintained rootnodes containing lists of currently active supernodes to which users could connect. Bothdefendants also communicated with users incidentally, but not to facilitate infringement. Thecourt found all of these activities too incidental to any direct copyright infringement to constitutematerial contribution. Accordingly, the defendants were not liable for contributoryinfringement. 14151410 Id. at 1162 n.9.1411 Id. at 1162.1412 Id. at 1163.1413 Id.1414 Id. at 1163-64.1415 Id. at 1164. The court noted that the copyright owners had also sought relief based on previous versions of thedefendants’ software, which contained significant, and perhaps crucial, differences from the software at issueon appeal. The Ninth Circuit noted that it was expressing no opinion as to those issues. Id. at 1166.- 313 -