Agentless Backup is Not a Myth
But he stopped short of barring its distribution completely, saying that "could constitute an inappropriate extension of Plaintiffs' copyrights. Plaintiffs should not lightly be given total control over a product capable of substantial noninfringing uses."
The language proposed for the injunction by MGM would shut down StreamCast until it installed a "perfect" filter that would prevent any infringement. Judge Wilson said that no such mechanism exists, nor is it technologically feasible. He also doubted that an immediate shutdown order "would most effectively stop further infringement." He saw it as beneficial to the plaintiffs' rights to allow StreamCast to distribute filtering software and take steps to encourage end-users into accepting an upgrade.
"A permanent injunction will issue requiring StreamCast to reduce Morpheus's infringing capabilities, while preserving its core noninfringing functionality, as effectively as possible," he wrote. Its steps will include encouraging end-users to upgrade from non-filtered legacy software.
StreamCast objected to MGM's demand for 'state of the art' filtering, saying it was cost prohibitive. Judge Wilson was unsympathetic, though. "Cost is not likely to be a controlling factor, as the injunction will be designed primarily to protect Plaintiffs' copyrights," he wrote.
Judge Wilson appointed a 'special master' to select "the most effective means available" to reduce the infringing capabilities of Morpheus "while preserving its noninfringing uses as feasible."
He also ordered the Plaintiffs to provide details of copyrighted works to StreamCast, something it has hitherto refused to do. This should include artist and title, a certification of ownership, and some evidence that one or more files containing each work is available on the Morpheus system.
Comment
David Woods, a litigator with Pinsent Masons, the law firm behind OUT-LAW.COM, described it as a clever ruling.
"Although the permanent injunction that MGM requested for was not granted, the effect of the ruling could well be the same," said Woods. "It seems from the ruling that 'once an infringer, always an infringer', and although StreamCast is still allowed to use its software, it now faces a potentially insurmountable hurdle. It's more of a financial one than a technological one, though."
Woods said the Judge is demanding a filter that is more effective than StreamCast's current system.
"The judge accepts that perfect filters are not realistic. But he is also saying that the company has to pay for the most effective solution that the market can offer. He's unmoved by StreamCast's claim that it can't afford these third party systems," he said.
"In any event, StreamCast's demise could well be sealed by the damages award, which has still to come," said Woods.
Copyright © 2007, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.
COMMENTS
Very good news
The more they do to slow down the stealing of goods on the Internet the better. It's a long hard journey but without it being won it will cost lots of people their jobs. Those stealing are making every excuse they can think of to cover their thieving but in the end it's that. They are thieving.
They tell us how much money the artist or recording companies are making or how bad the product is. Well the record and film companies are not fighting this because they are making money and when their profits are down it's the guys at the bottom who lose their jobs. Guys like the thieves family. And if the film is not worth buying, than don't buy it and don't steal it.
Can I steal their computer because they make too much money or it's not worth buying?
Great quote
'He also noted that "Morpheus users have the continued ability to pillage..."'
Avast!
Who cares?
Seriously - let's look at what is out there:
eDonkey network
Overnet
BitTorrent
FastTrack
Kad Network
OpenNap
SoulSeek
DirectConnect
to name just a few.. I know, I know, some of those are broken for some or all clients, but a decent client 'protocol aggregator' like mldonkey will pretty much allow you to use some or all of these. Pull the plug on one network and about five more will spring up. It's driven by what the consumer wants. And the consumer wants to share. You absolutely cannot stop it. period.
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