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StreamCast Confident of Morpheus Victory - Update
February 4, 2004
Thomas Mennecke
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Tuesday was a significant day in the history of file-sharing. While the United States Court of Appeals' decision on December 19 was monumental in its own right, the very legality of file-sharing is currently on the line.

In late 2002, the music and movie industry sued StreamCast Networks and Grokster. They contend such software infringes on their copyrights, and therefore developers should be held directly responsible. The logic seems sound enough, it worked for Napster, Aimster, Audio Galaxy and SongSpy, why not this circumstance?

Unfortunately for copyright holders, StreamCast and Grokster do not play by the same rules. Unlike these networks that rely on a central indexing server, StreamCast and Grokster are decentralized.

Grokster operates on FastTrack, which uses supernodes to index individuals' shared directories. Supernodes are similar to centralized indexing servers; however they exist outside the control of network administrators. Morpheus, which has maintained a perpetual identity crisis, seems to have settled on its in-house protocol named "NeoNet." Previously, it has existed on OpenNap, FastTrack and Gnutella.

The main focus of StreamCasts’ defense is the 1984 Sony BetaMax decision. Like decentralized networks, Sony did not have control over the recorder once the customer owned the product. Subsequently, the US Supreme Court ruled that Betamax recorders had enough non-infringing uses that the manufacturer (Sony) could not be held responsible for the actions of its users. StreamCast is confident this precedent will be applied to this case. From StreamCast in-house General Counsel Matthew A. Neco:

"We believe that the Panel asked questions that go to the heart of the issues, including the import of the Sony BetaMax case, and recognized that proportionality of infringing vs. non-infringing isn't the test, and even if it were, there are clearly substantial non-infringing uses to Morpheus. We are confident that the Ninth Circuit will uphold Judge Wilson's well-reasoned opinion."

StreamCast also feels that the tone from the three judge panel was very indicative of a favorable outcome. From Streamcast General Counsel Charles S. Baker (Slyck exclusive):

"I was very impressed with the Panel's grasp of the important issues raised by this appeal. The Panel's questioning clearly leads me to believe that the principles of the Sony case will be upheld, and that Judge Wilson's decision will be affirmed in its entirety."

StreamCast Senior Director of Communication, Brian O'Neal, who attended the proceedings, noted that the attorney for The Leiber plaintiffs (music publishes) Carey Ramos "addressed the judge by the wrong name several times until he was corrected by the panel. He never recovered and found himself apologizing several times."

While the champagne bottles may not be popping just yet, indications remain positive. It should also be noted that both sides agree that regardless of the outcome, the final decision may ultimately be yielded by the United States Supreme Court.

Update: EFF Senior Intellectual Property Attorney Fred von Lohmann provided us with a link to an mp3 recording of the entire proceedings (from the EFF website.) The file is about 15 megabytes and around 68 minutes long. The recording provides a fascinating insight into Tuesday's proceedings.

Fred von Lohmann points out, "One stand-out quote from Judge Noonan, responding to music publisher attorney Carey Ramos, who was indulging in a bit of colorful "piracy" language:

"Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that's a very debatable question. You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And curtail the use of abusive language."

You can copy and paste the following URL into WinAmp, or simply download the file (the file is public domain and free for reposting, sharing, or even remixing:

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P2P Clients :: Morpheus

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