especially likely to be the case where the product in question is overwhelmingly
used for infringing purposes, and requires little or no specialized training to
operate. At a certain point, the inducer can simply continue to distribute the
product without any additional active encouragement, recognizing that the
marketplace 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 though
he/she no longer chooses to actively promote that message. ... Thus, distribution
of a product capable of substantial noninfringing uses, even after the
promotion/encouragement of infringement ceases, can by itself constitute
inducement.^1978In view of these principles, the court concluded that the injunction must impose a
filtering obligation on StreamCast because an unfiltered Morpheus system and software would
necessarily capitalize on and remain inexorably linked to StreamCast’s historical efforts to
promote infringement.^1979 The court rejected, however, the plaintiffs proposal that StreamCast
be enjoined from distributing Morpheus or another peer-to-peer network unless and until it had
demonstrated to the court’s satisfaction that it contained “robust and secure means exhaustively
to prevent users from using” the system to infringe.^1980 The court noted that there is no filtering
system that could “exhaustively” stop every single potential infringement on a peer-to-peer
network, and plaintiffs should not, through a standard that stringent, be effectively given the
right to prohibit entirely the distribution of a product having substantial noninfringing uses.^1981
Instead, the court concluded that it would issue a permanent injunction requiring
StreamCast to reduce Morpheus’ infringing capabilities, while preserving its core noninfringing
functionality, as effectively as possible.^1982 “Streamcast’s duties will include, but not necessarily
be 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.”^1983 The court noted that cost
of such filtering, while a relevant criterion if all else were equal, “is not likely a controlling
factor, as the injunction will be designed primarily to protect Plaintiffs’ copyrights. The mere
fact that an adjudicated infringer may have to expend substantial resources to prevent the
consummation of further induced infringements is not a central concern.”^1984
Lastly, the court turned to the issue of whether, and to what extent, the injunction should
require notice from the plaintiffs of their copyrighted works in order to trigger StreamCast’s duty
(^1978) Id. at 106-08.
(^1979) Id. at 110-11.
(^1980) Id. at 112.
(^1981) Id. at 113-14.
(^1982) Id. at 115.
(^1983) Id. at 115-16.
(^1984) Id. at *117.