Advanced Copyright Issues on the Internet - Fenwick & West LLP

It is important to recognize that the Supreme Court did not impose any stricttiming relationship between specific acts promoting infringements, distribution,and the direct infringements themselves. For a party to be liable for inducement,distribution may begin prior to any promotion of infringement, distribution andpromotion can occur at the same time, and most critically, distribution can followpast promotion. … As a matter of common sense, a successful inducer willsometimes have no need to repeat the infringing message ad infinitum. This isespecially likely to be the case where the product in question is overwhelminglyused for infringing purposes, and requires little or no specialized training tooperate. At a certain point, the inducer can simply continue to distribute theproduct without any additional active encouragement, recognizing that themarketplace will respond in turn.Thus, once the market has internalized the inducer’s promotion of infringement,the resulting infringements should be attributable to that defendant even thoughhe/she no longer chooses to actively promote that message. … Thus, distributionof a product capable of substantial noninfringing uses, even after thepromotion/encouragement of infringement ceases, can by itself constituteinducement. 1520In view of these principles, the court concluded that the injunction must impose afiltering obligation on StreamCast because an unfiltered Morpheus system and software wouldnecessarily capitalize on and remain inexorably linked to StreamCast’s historical efforts topromote infringement. 1521 The court rejected, however, the plaintiffs proposal that StreamCastbe enjoined from distributing Morpheus or another peer-to-peer network unless and until it haddemonstrated to the court’s satisfaction that it contained “robust and secure means exhaustivelyto prevent users from using” the system to infringe. 1522 The court noted that there is no filteringsystem that could “exhaustively” stop every single potential infringement on a peer-to-peernetwork, and plaintiffs should not, through a standard that stringent, be effectively given theright to prohibit entirely the distribution of a product having substantial noninfringing uses. 1523Instead, the court concluded that it would issue a permanent injunction requiringStreamCast to reduce Morpheus’ infringing capabilities, while preserving its core noninfringingfunctionality, as effectively as possible. 1524 “Streamcast’s duties will include, but not necessarilybe limited to: (1) a filter as part of future Morpheus software distributed to the public; and (2)steps to encourage end-user upgrades from non-filtered software.” 1525 The court noted that costof such filtering, while a relevant criterion if all else were equal, “is not likely a controlling1520 Id. at *106-08.1521 Id. at *110-11.1522 Id. at *112.1523 Id. at *113-14.1524 Id. at *115.1525 Id. at *115-16.- 335 -