I want to share with you a few highlights from the hearings, which ended just a few minutes ago. The courtroom was filled with lawyers and, as Judge Stephen Wilson noted, "The arguments are being repeated over and over--so if you are going to say something, say something new." The court asked for argument on two claims: contributory and vicarious copyright infringement.

On the contributory infringement claim, the judge asked, "What more are the defendants contributing apart from the software?" and "What type of knowledge must the defendants have in order for it to be sufficient as a matter of law?"

Both sides agreed that the file-sharing services provided upgrades, served ads, communicated with users, provided a log-in service, and at one point in time, provided a root server as a backup. The question for the court is whether these services contributed to the infringement, or were instead merely incidental. Napster was distinguished from Grokster and co. on this question because the central servers that Napster operated were central to the service and infringement. Here, the defendants said that they could discontinue the provision of these incidental services tomorrow and the users could all still access the network, by connecting with each other.

The entertainment companies argued that this was like Fonavisa, where the defendant auction company provided a site and facilities for the people to get together and infringe--and this was deemed sufficient contribution.

The other focus was the knowledge element of the contributory claim. The court seemed to agree that general knowledge that infringment was taking place was enough--and plaintiffs threw out some truly provocative anecdotes in the form of emails to Grokster/Streamcast service people ("I am trying to download Eminem, how can I do it faster?"). The attorney for MusicCity tried to speak about substantial non-infringing uses of the file sharing network, but the court cut off arguments--principally, I think, because the audience was growing restless. (We were two hours in at that point.)

The hearings then moved to the vicarious liability issues. Here, knowledge is not an element, but "control" is. The argument focused on control because the architecture of the file sharing network is such that it does not permit (according to the defense) blocking of infringement. No ability to block = no control. Grokster conceded an ability to block and filter generally, but not specifically for purposes of preventing infringement. Plaintiffs entertainment companies again read emails such as one to the CTO of MusicCity, when an employee discovered a copyright lawyer from Mitchell Silverberg on the service, presumably acting on behalf of clients--the email read "This is another one for the banned list," and the reply read "Done."

It then became apparent that the issue of whether the FastTrack software is capable of monitoring for infringement is still a disputed fact, and it therefore seems unlikely that the vicarious liability claim will be resolved on summary judgment.

In conclusion, Judge Wilson indicated he may issue a "speaking order" to indicate his view on the issues.

I think we'll get a denial on the vicarious claim; mixed on the contributory claim.