Andrew P. bridges,State Bar No. 122761
richard nessary,State Bar No. 180682
jennifer a. golinveaux, State Bar No. 203056
terri y. chen,State Bar No. 209854
alexander d. macgillivray, State Bar No. 212770
WILSONSONSINI GOODRICH & ROSATI
650Page Mill Road
PaloAlto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
CINDY A. COHN, State Bar No.145997
FRED VON LOHMANN, State Bar No. 192657
ROBIN D. GROSS, State Bar No. 200701
SanFrancisco, CA 94110
Telephone: (415) 436-9333 x 123
Facsimile: (415) 436-9993
JOSEPH R. TAYLOR, State Bar No. 129933
JEFFREY K. COMPTON, State Bar No. 142969
LINER YANKELEVITZ SUNSHINE & REGENSTREIF
3130 Wilshire Boulevard, Suite 200
Santa Monica, CA 90403
Telephone: (310) 881-2192
Facsimile: (310) 453-5901
MusicCity.com, Inc. (nowknown as StreamCast Networks, Inc.) and MusicCity Networks, Inc.
UNITEDSTATES DISTRICT COURT
CENTRAL DISTRICT OFCALIFORNIA
Metro-Goldwyn-Mayer, et. al.,
Grokster, Ltd. et. al.,
Case No.: 01-08541 SVW (PJWx)
DECLARATION OF DARRELL SMITH IN SUPPORT OF MUSICCITY.COM, INC.’S AND MUSICCITY NETWORKS, INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT
1. My name is Darrell Smith. I reside in Scottsdale, Arizona.
2. I am the Chief Technology Officer of MusicCity. I am the chief software developer atMusicCity for the software program called “Morpheus.”
3. Before working with MusicCity, I was Vice President ofDevelopment at Motion Pixel, Inc. and Sirius Publishing, Inc., where Ideveloped advanced video compression and playback software for use in thetelecommunications, personal computers and motion picture industries.
4. The Morpheus softwareprogram is a communications tool that allows users to connect together to forma user network. Using the Morpheussoftware program, users may search for and share any kind of computer file (includingtext, images, audio, video, and software files) with any other user of thenetwork. The network itselfcreates indexes of resources available to it, without relying upon a centralserver to index the entire network. The Morpheus software program also has the ability to send and receiveinstant messages within the network, to organize media files on one’s owncomputer, and to display or play the contents of media files on one’scomputer.
5. The network created by users of the Morpheus software program(and the programs of the other defendants) is “self-organizing,” inthat the users communicate with each other without assistance from MusicCity.The network itself shares and updates information, and allocates differentresources as needed.
6. The user network consists of users of the Morpheus, KaZaA, orGrokster software products.
7. One particularly useful and innovative feature of the networkcreated by users of the Morpheus software program is the “dynamic,”or variable, use of “supernodes.” A “node” is an end-point of the Internet,typically a user’s computer. A “supernode” is a node that has a heightened function,accumulating information from multiple other nodes. In the network created by users of the Morpheus softwareprogram, nodes become supernodes and may revert to being mere nodes depending uponnetwork demands and the nodes’ ability to take on heavier networkduties. The network self-selectssupernodes; a user’s node may be a supernode one day and not on thefollowing day, depending on resource needs and availability on the network.
8. Supernodes help the network operate efficiently by aggregatinginformation from many nodes so that each node, by searching one supernode,needs to connect with fewer other nodes to find resources.
9. MusicCity does not operate any supernodes.
10. When a user installs the Morpheus software program, theprogram comes with an initial list of supernodes, just as a browser generallycomes pre-loaded with a list of popular web site addresses and Internet serviceproviders. When the person’scomputer first connects to one of the supernodes, the supernode updates theinitial list that came with the program.
11. When a user first operates the Morpheus software program, itinteracts briefly with MusicCity’s server to establish a username andpassword. MusicCity itself doesnot use the username or password for any purpose; instead, the usernameidentifies the user uniquely to other members within the user network. If the software cannot access theMusicCity server, the user may still access the user-created network, but theuser’s username will not be properly displayed and other users will notknow that this is the same user who has connected before. Indeed, this has happened many timeswhen MusicCity’s servers have been unavailable.
12. After attempting to submit the user’s username (and evenif MusicCity’s server is unavailable), the Morpheus software programconnects to the user-created network by connecting to another user who isfunctioning at that time as a supernode. To search the network, the Morpheus software program sends searchrequests to a supernode; the supernode reports results from the nodes andsupernodes with which it communicates.
13. A user who wishes to locate a file on another user’scomputer enters a search term into a search request page. The software connects the user to asupernode, which searches other nodes connected to it and, if necessary, othersupernodes. The local supernodethen sends to the requester a list of other users on the network who have filesthat are associated with the search terms.
14. MusicCity has no involvement in making search requests,maintaining file indexes, processing search requests, compiling search results,sending search results to a user, controlling searches or displays of results,or monitoring searches or displays of results.
15. Next, to obtain files, a user of the Morpheus software programselects files from the search results and connects directly to the otherusers’ computers and downloads the files directly from the otherusers’ computers. MusicCity’s servers are not involved in identifying locations thathost user files, requesting those files for transfer, communicating with thehost users, transferring files from one user to another, controlling ormonitoring transfers of user files, or controlling or monitoring management oruse of files. MusicCity’sservers have no knowledge of particular files being transferred among users.
16. MusicCity’sinvolvement with use of the Morpheus software after delivery of the software isvery limited. The softwarecontains two components that activate the user’s Microsoft InternetExplorer “browser” software when the software is running on auser’s computer, regardless of any activity by the user. One component calls on MusicCity’sservers to obtain changeable background graphics for the “start”page of the Morpheus user interface. The background graphics make the software user interface attractive,give MusicCity the chance to broadcast messages to Morpheus software users, andpermit advertising. The othercomponent calls on other servers of MusicCity or other companies, which sendadditional advertisements into a window at the bottom of the software’suser interface.
17. Both the“start” page graphics and the advertisements are obtained by theuser’s Microsoft Internet Explorer program whenever the Morpheus softwareprogram is running and is connected to the user network, regardless of theactivity of the user.
18. Thus, even if oneengages in no searching, sharing, downloading, or playing of media files, thegraphics and advertising will be displayed on the software interface.
19. Once a user has obtained the Morpheus software program,neither MusicCity nor any of its computer servers participates in, orcontributes in any way to, the transfer of media files on the network createdby users of the Morpheus software program.
20. As noted above, once theuser obtains the Morpheus software program, MusicCity has no involvement in anyof the steps for searching and the transfer of files. In addition, the Morpheus software program does notcommunicate to MusicCity or its servers any information about possession,receipt, transfer, searching, or indexing of the media files by the user. Nor does it use MusicCity or itsservers to search for, index, transfer, download, manage, display or play anyfiles of the Plaintiffs’ media content.
21. To foster a sense ofcommunity among users of the Morpheus software program, MusicCity operates atits web site a chat service and a discussion board, but the Morpheus softwarehas no direct connection to those services. A user of the software may click on a link displayed in the“Start” page graphical interface in order to go toMusicCity’s web-based chat or discussion services, but the access tothose services is through a web interface that exists regardless of whether onearrives from the Morpheus interface or directly from the web via its Internetaddress www.musiccity.com. Morpheus usernames and passwords do not gain access to the chat anddiscussion services; one mustregister a username and password separately for those services.
22. In sum, once a user hasinstalled a copy of the Morpheus software program, MusicCity has no effectiveinvolvement with or control over what a user does with the program. Users mustelect to run the software, determine what (if any) files they wish to store ontheir hard drive or to share, decide what bandwidth to allocate to theapplication, and indicate whether they may be designated to serve as atransient supernode. Users decidewhether to use the software to join and form a public, user-creatednetwork. Users decide whether tosearch for, find, send, or receive files over the user-created network. The Morpheus product does not reportany information about a user’s conduct to MusicCity’s servers. It sends only username/passwordinformation when the user starts running Morpheus.
23. If MusicCity ceased tooperate, if its servers became inoperative (as has happened on occasion owingto technical malfunctions or maintenance) or if all network connections toMusicCity are severed, the searching, indexing, transferring, downloading,managing, display and play functions of the software would continueunaffected.
24. The only changes wouldbe that (1) the display of advertisements and the display of graphics on thesoftware user interface would be interrupted, and (2) the user’s usernamewould be displayed on the user network without identifying the user as usingthe Morpheus software program.
25. MusicCity does not “operate” the Morpheus usernetwork, and it does not operate a file-indexing service. Morpheus software program users can(and, in fact, do) take advantage of the program’s full communicationfunctionality without MusicCity’s continuing involvement. Even when MusicCity’s servershave been down, Morpheus use has been ongoing, with Morpheus users able to findand download files on their own.
26. The Morpheus product is widely available from third parties onits user-created network or the Internet at large. MusicCity cannot reliably stop a particular person orcomputer from obtaining a copy of the Morpheus product.
27. A variety of related digital technologies, some of which maybe used in conjunction with Morpheus, may equally be accused of being“essential tools” for copying files and other data regardless ofthe legal status of those files. They include:
a) high-speed communications devices such as DSL and cablemodems, favored by those who want to download video or sound files;
b) browser software (such as Microsoft Internet Explorer orAmerica Online’s Netscape Communicator), for viewing, editing and copyingfiles that are posted to the Web;
c) server software (such as Microsoft Internet Information Serverand Apache HTTP Server) for distributing content across the Internet
d) media player software (such as Microsoft Media Player), forviewing and displaying media files;
e) e-mail and instant messaging software, favored by those whowant to send or receive files privately;
f) internet relay chat servers, commonly used for file-sharingactivities;
g) newsgroup software (often bundled into e-mail software),favored by those who want to choose and download music and video files fromnewsgroups;
h) file transfer protocol software for obtaining files over theInternet;
i) scanners, fax modems, and printers, for those who want to copyand/or transmit images over the Internet and otherwise; and
j) large-capacity storage devices such as hard drives, CD-ROMburners, DVD burners, and Zip drives, and their recording media, favored bythose who want to keep libraries of video or sound files.
28. Attached hereto as Exhibit A is a true and correct copy of aprint-out of the screen displays of the Morpheus software program’s“Start” interface.
29. Attached hereto as Exhibit B is a true and correct copy of aprint-out of the screen display of the Morpheus software program’s“Search” interface.
I declare under penalty of perjury underthe laws of the United States of America that the foregoing is true and correctand that this declaration is executed in Scottsdale, Arizona on____________________, 2002.