The brief cites StreamCast Networks' (then called Music City) former chief executive telling a board member that their software would be "the logical choice to pick up the bulk of the 74 million users that are about to 'turn Napster off'." The record labels and movie studios also cite communications between Music City and Kazaa, the company that created the file-swapping technology, that show both companies were thinking about trying to figure out ways to monitor trades of individual files. "The activity we want to monitor if possible are the files that users download, so that we can track copyrighted material for royalties," an unnamed Music City representative is quoted as saying in one exchange. Details about whether this exchange was e-mail, chat or another medium are not given. "OK," responds an unnamed Kazaa representative. "As I've mentioned, we've designed a system for this, but it's not yet implemented. It could be quickly, however." Attorneys for Streamcast Networks say this exchange, and other bits of evidence like it, mean little. Neither Music City nor any other software company is required to build in specific copyright protection features simply because the capability exists, they say. "Owning copyrights doesn't give you the right to dictate to people how to build their products," said Fred von Lohmann, an Electronic Frontier Foundation attorney who is representing Streamcast. "If that were the rule, it would make Microsoft, with Internet Explorer and Outlook, an infringer. It would make virtually every software company liable for copyright infringement." The trade associations' brief goes into specific technological details about the file-swapping software, trying to show that the peer-to-peer companies had a direct role in maintaining the networks, instead of simply distributing software. However, the documents lump all the file-swapping companies together, making it difficult to discern exactly which company had which alleged role in building and maintaining the networks. The evidence now beginning to filter out into the public eye will reach court on 2 December, when a federal judge in Los Angeles will hear each side argue that the case should be brought to an immediate close.
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