-- StreamCast’s software was used overwhelmingly for infringement: A study by the
plaintiffs’ experts showed that 87.33% of the files offered for distribution on the Morpheus
network, and that almost 97% of the files actually requested for downloading, were infringing or
highly likely to be infringing. The district court noted that, while infringing use by third parties
was not by itself evidence of StreamCast’s intent, the staggering scale of infringement made it
more likely that StreamCast condoned illegal use and provided a backdrop against which all of
StreamCast’s actions had to be assessed.^1956
-- StreamCast targeted Napster users: The district court found uncontroverted evidence,
including internal communications, promotional efforts, advertising designs, and actual
advertisements, establishing that StreamCast purposefully targeted Napster users, not merely to
market to them, but to convert them into StreamCast users by offering them the same file-sharing
service that Napster had itself offered.^1957
-- StreamCast assisted infringing uses: StreamCast provided users with technical
assistance for playback of copyrighted content, in one instance suggesting to a user who
complained about the paucity of music from Elvis and Muddy Waters that he upload copyrighted
content for sharing.^1958
-- StreamCast ensured its technology had infringing capabilities: Among other things,
the district court cited to evidence that, before deciding to license FastTrack technology for
Morpheus, StreamCast’s chairman evaluated FastTrack by searching for Garth Brooks songs on
the FastTrack network. While Morpheus was in beta testing, StreamCast employees identified
the insufficient quantity of popular copyrighted content on the network as an important problem,
and many StreamCast employees tested the software’s infringing capabilities by downloading
copyrighted tracks. The Morpheus interface contained a search category for “Top 40” songs that
were almost invariably copyrighted. And the court noted that StreamCast took active steps to
protect illegal file trading from the enforcement efforts of copyright holders and deployed
encryption technology so that the plaintiffs could not see what files were being transferred
through Morpheus.^1959
-- StreamCast’s business model depended on massive infringing use: The record
established that StreamCast knew its business model depended on massive infringing use, and
acted to grow its business accordingly. StreamCast’s CTO testified that StreamCast’s objective
in advertising to Napster users was to increase the number of users by increasing the amount of
file sharing, since the more files that were physically available, the more users would come. The
company tracked its progress after launch by tracking the number of files that were available for
sharing, particularly as against those available for sharing through Napster.^1960
(^1956) 454 F. Supp. 2d at 985.
(^1957) Id. at 985-86.
(^1958) Id. at 986-87.
(^1959) Id. at 987-88.
(^1960) Id. at 988-89.