Part two of the trial court's permanent injunction decision in MGM v. Grokster deals with the proper role and scope of the injunction in the case of a defendant that induces others to infringe copyrights. (see here for Part 1 of my analysis re: presumptions and proof of irreparable harm).
The court starts out with a fairly innocuous statement: "The scope of the injunction should be coterminous with the infringement." Fair enough. But as the court then makes clear, what that scope is exactly is hard to define. Inducement of copyright infringement in the P2P content is a funny beast. As the court recognizes, it is a combination of both behavior (promotion/encouragement of illegal acts) as well as the provision or distribution of technology. When that technology has legitimate non-infringing uses, an injunction banning that technology completely is beyond the scope of the infringement and not coterminous.
So what's a court to do? Well, instead of simply mandating that StreamCast stop all infringement, it sorts through the various options and settles on filtering. While the court justifies filtering on the premise that it is an option that will not shut down the Morpheus system (an overboard approach) but still addresses the issue of infringement, I also think the court found it to be the most flexible option, leaving it with a feeling that it could easily revisit the issue by raising or lowering the sensitivity and burden of the filtering requirements as needed.
In discussing the scope of the filter, the court quickly dismisses any requirement that it be "perfect" as that would effectively shut down StreamCast and ban distribution of the Morpheus software. Instead, the court required StreamCast "to reduce Morpheus's infringing capabilities, while preserving its core noninfringing functionality, as effectively as possible." This boils down to two things:
- Installing a filter as part of future Morpheus software distributed to the public; and
- Taking steps to encourage legacy users of the old Morpheus software to upgrade to the new filtered versions.
Of course, phrases like "effectively as possible" are bound to be the subject of dispute, but the court did make it clear that it is not expecting StreamCast to go bankrupt trying to filter out every possible work. It also required the Plaintiffs to submit information about each copyrighted work to be filtered so that StreamCast couldn't be held in contempt for innocently leaving out a song or movie from its list. Finally, the court ordered the appointment of a special master to help evaluate the "highly technical" aspects of StreamCast's implementation of the filtering program and how effective it should and can be.
One other interesting aspect of the court's decision was its discussion of whether a company distributing a P2P system found to be inducing infringement could ever be free of its intent to induce. In this decision, the court found that no, it could not. Once an inducer, always an inducer, or as the court said, "The bell simply cannot be unrung." This means that tech companies must be extremely careful never to be found to be inducing, else they forever bear that mark in litigation.