-- StreamCast took no meaningful affirmative steps to prevent infringement: Although
noting that secondary liability could not be premised on failure to prevent infringing use alone,
the district court noted the Supreme Court’s holding that a defendant’s failure to do so can
indicate an intent to facilitate infringement.^1961 Based on this, the district court ruled, “By
implication, although StreamCast is not required to prevent all the harm that is facilitated by the
technology, it must at least make a good faith attempt to mitigate the massive infringement
facilitated by its technology.”^1962 The district court noted at least two technologies that
StreamCast could have used to implement a system to filter out copyrighted content from the
Morpheus network – acoustic fingerprinting using unique digital signatures for each music file
for identification and metadata that describes the properties of a file, such as song title and artist
name. With respect to the latter, the court noted that Morpheus executed file searches on the
basis of metadata such as song names, and contained a feature that, if activated by the user,
would filter out pornographic content on the basis of file name. The plaintiffs argued that the
technology behind the pornographic filter could easily have been reconfigured to filter out
copyrighted content.^1963
StreamCast countered that metadata filtering would be burdensome and overbroad, as it
would block all files that shared common words in metadata, even if the file was not
copyrighted. StreamCast also argued that, with regard to FastTrack-based versions of Morpheus,
it did not have the ability to directly modify the FastTrack source code, which the licensor
controlled, to implement filtering.^1964 The court noted that, based on the foregoing, a jury could
reasonably agree with StreamCast that copyright filtering would not work perfectly and
implementing it would negatively impact usability.^1965 However, the court ruled that “the
ultimate question ... is to examine StreamCast’s intent. Even if filtering technology does not
work perfectly and contains negative side effects on usability, the fact that a defendant fails to
make some effort to mitigate abusive use of its technology may still support an inference of
intent to encourage infringement.”^1966
The court further noted that StreamCast saw its resistance to filtering as a competitive
advantage, citing testimony of StreamCast’s chairman that if Napster were forced to filter,
StreamCast would take all of Napster’s users. StreamCast was unreceptive when it was
approached by GraceNote, a company that had worked with Napster on a way to use acoustic
fingerprinting technology to identify copyrighted music and pay copyright holders.^1967
(^1961) Id. at 989.
(^1962) Id.
(^1963) Id. at 989-90.
(^1964) Id. at 990.
(^1965) Id.
(^1966) Id.
(^1967) Id. at 991.