Advanced Copyright Issues on the Internet - Fenwick & West LLP

encryption technology so that the plaintiffs could not see what files were being transferredthrough Morpheus. 1501-- StreamCast’s business model depended on massive infringing use: The recordestablished that StreamCast knew its business model depended on massive infringing use, andacted to grow its business accordingly. StreamCast’s CTO testified that StreamCast’s objectivein advertising to Napster users was to increase the number of users by increasing the amount offile sharing, since the more files that were physically available, the more users would come. Thecompany tracked its progress after launch by tracking the number of files that were available forsharing, particularly as against those available for sharing through Napster. 1502-- StreamCast took no meaningful affirmative steps to prevent infringement: Althoughnoting that secondary liability could not be premised on failure to prevent infringing use alone,the district court noted the Supreme Court’s holding that a defendant’s failure to do so canindicate an intent to facilitate infringement. 1503 Based on this, the district court ruled, “Byimplication, although StreamCast is not required to prevent all the harm that is facilitated by thetechnology, it must at least make a good faith attempt to mitigate the massive infringementfacilitated by its technology.” 1504 The district court noted at least two technologies thatStreamCast could have used to implement a system to filter out copyrighted content from theMorpheus network – acoustic fingerprinting using unique digital signatures for each music filefor identification and metadata that describes the properties of a file, such as song title and artistname. With respect to the latter, the court noted that Morpheus executed file searches on thebasis of metadata such as song names, and contained a feature that, if activated by the user,would filter out pornographic content on the basis of file name. The plaintiffs argued that thetechnology behind the pornographic filter could easily have been reconfigured to filter outcopyrighted content. 1505StreamCast countered that metadata filtering would be burdensome and overbroad, as itwould block all files that shared common words in metadata, even if the file was notcopyrighted. StreamCast also argued that, with regard to FastTrack-based versions of Morpheus,it did not have the ability to directly modify the FastTrack source code, which the licensorcontrolled, to implement filtering. 1506 The court noted that, based on the foregoing, a jury couldreasonably agree with StreamCast that copyright filtering would not work perfectly andimplementing it would negatively impact usability. 1507 However, the court ruled that “theultimate question … is to examine StreamCast’s intent. Even if filtering technology does notwork perfectly and contains negative side effects on usability, the fact that a defendant fails to1501 Id. at 987-88.1502 Id. at 988-89.1503 Id. at 989.1504 Id.1505 Id. at 989-90.1506 Id. at 990.1507 Id.- 332 -