alleged infringement. The court held, however, that “notices of infringing conduct are irrelevant
if they arrive when Defendants do nothing to facilitate, and cannot do anything to stop, the
alleged infringement,” as was the case here since the infringing activity took place only after the
defendants had distributed their software and, as elaborated under the material contribution
prong, they were not in a position to stop the infringing activity.^1853
Citing to the Supreme Court’s Sony case, the court further ruled that mere distribution of
a device that the defendants had general knowledge could be used to commit infringement was
insufficient to impose contributory liability, so long as the device was capable of substantial
noninfringing uses. The court noted several substantial noninfringing uses for the defendants’
software, including distributing movie trailers, free songs or other non-copyrighted work, sharing
the works of Shakespeare, and sharing other content for which distribution is authorized.^1854
Turning to the material contribution prong, the court ruled that neither StreamCast nor
Grokster had materially contributed to the infringing acts of users of their software. The court
first noted that the Ninth Circuit found liability in the Napster case because Napster did more
than distribute client software – it also hosted a central list of files available on each user’s
computer and “thus served as the axis of the file-sharing network’s wheel.”^1855 Here, “the
critical question is whether Grokster and StreamCast do anything, aside from distributing
software, to actively facilitate – or whether they could do anything to stop – their users’
infringing activity.”^1856
With respect to Grokster, the court noted that Grokster did not have access to the source
code of the FastTrack client software application, and its primary ability to affect its users’
experience was the ability to configure a “start page” in the software and to provide advertising
automatically retrieved by the software. An individual node using the FastTrack software
automatically self-selected its own supernode status, and utilized a preset list of “root
supernodes,” each of which functioned principally to connect users to the network by directing
them to active supernodes.^1857 “While Grokster may briefly have had some control over a root
supernode, Plaintiffs do not dispute that Grokster no longer operates such a supernode. Thus, the
technical process of locating and connecting to a supernode – and the FastTrack network –
currently occurs essentially independently of Defendant Grokster.”^1858 The transfer of files
among users was accomplished without any information being transmitted to or through any
computers owned or controlled by Grokster.^1859
(^1853) Grokster, 259 F. Supp. 2d at 1037.
(^1854) Id. at 1035.
(^1855) Id. at 1039.
(^1856) Id.
(^1857) Id. at 1040.
(^1858) Id.. Primary root supernodes on the FastTrack network were operated by Kazaa BV and Sharman Networks.
Id. at 1040 n.6.
(^1859) Id. at 1040.