Targeting Known Demand for Infringing Activity. First, both Grokster and StreamCast
showed themselves to be aiming to satisfy a known source of demand for copyright infringement
- the market comprising former Napster users.^1902 StreamCast’s internal company
communications and advertising designs were aimed at Napster users. One ad mockup, for
example, stated, “When the lights went off at Napster ... where did the users go?”^1903 An
internal email from a company executive stated, “We have put this network in place so that when
Napster pulls the plug on their free service ... or if the Court orders them shut down prior to that
... we will be positioned to capture the flood of their 32 million users that will be actively
looking for an alternative.”^1904 Significantly, the Court noted that whether these internal
messages or ads were ever communicated to the public did not disqualify them as valid evidence
of inducement, because they tended to establish the subjective purpose in the minds of the
defendants, particularly when coupled with other evidence of concrete actions taken by the
defendants.^1905 StreamCast and Grokster both distributed an “OpenNap” program, which was a
Napster-compatible program for file sharing. Grokster distributed an electronic newsletter
containing links to articles promoting its software’s ability to access popular copyrighted music.
The Court also noted that even Grokster’s name was an apparent derivative of Napster.^1906
Finally, both companies responded affirmatively to requests for help in locating and playing
copyrighted materials.^1907
Absence of Effort to Reduce Infringing Activity. Second, the evidence of unlawful
objective was given added significance by the fact that neither company attempted to develop
filtering tools or other mechanisms to diminish the infringing activity using their software.^1908 In
one of the most significant footnotes in the opinion, the Court stated that, absent other evidence
of intent, there is no general duty to redesign a product to reduce or avoid infringement: “Of
course, in the absence of other evidence of intent, a court would be unable to find contributory
infringement liability merely based on a failure to take affirmative steps to prevent infringement,
if the device otherwise was capable of substantial noninfringing uses. Such a holding would
tread too close to the Sony safe harbor.”^1909 However, in this case, the Court believed that, given
the very strong other evidence of intent to induce infringement, the failure to develop filtering
(^1902) Id. at 939.
(^1903) Id. at 938. Another read, “Napster Inc. has announced that it will soon begin charging you a fee. That’s if the
courts don’t order it shut down first. What will you do to get around it?” Id. at 925.
(^1904) Id. at 924-25. StreamCast delivered a press kit containing press articles about its potential to capture former
Napster users, and it introduced itself to some potential advertisers as a company “which is similar to what
Napster was.” Id. at 924. StreamCast also planned to flaunt the illegal uses of its software; its chief technology
officer averred that “the goal is to get in trouble with the law and get sued. It’s the best way to get in the news.”
Id. at 925.
(^1905) Id. at 938. “Even if these advertisements were not released to the public and do not show encouragement to
infringe, they illuminate StreamCast’s purposes.” Id. at 925 n.7.
(^1906) Id. at 924, 938.
(^1907) Id. at 938.
(^1908) Id. at 939.
(^1909) Id. at 939 n.12.