Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728protected by attorney-client privilege, work product doctrine or any other applicableprivilege.Subject to and without waiving the general or special objections, Defendant,respond as follows: Defendants will produce Defendants’ materials for promotion,marketing, advertising, and sale of the ReplayTV 4000. Defendants will notproduce confidential documents until a mutually agreeable protective order hasbeen entered.B. Plaintiffs’ Contentions Regarding the Requests At IssueIn this Request (No. 26), Plaintiffs seek all documents relating to themarketing and advertising of the ReplayTV 4000. Advertising, marketing, andpromotional claims are, of course, routinely discussed by courts in evaluatingclaims for contributory and vicarious infringement and in assessing the affirmativedefense of fair use. 71/And draft advertising and promotional materials -- whichmay contain truthful claims about the functionality of the ReplayTV 4000 thatDefendants ultimately elected to excise from the final versions -- are likely tocontribute substantially to Plaintiffs’ effort to find out the facts about Defendants’product and their knowledge of its uses. See In re F.T.C., 2001-1 Trade Cases P71/See Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d829, 846-47 & n. 30 (CA11 1990) (referring to Defendants’ advertising andmarketing materials in sustaining contributory infringement claim); Sega Enters.Ltd. v. Sabella, No. C93-04260 CW, 1996 WL 780560, at *3, *8 (N.D. Cal. 1996)(looking to advertising document to establish both defendant’ s knowledge andsubstantial participation for purposes of contributory infringement claim); SegaEnters. Ltd. v. MAPHIA, 948 F. Supp. 923, 928-929, 933 (N.D. Cal. 1996)(describing documents about defendant’ s advertising campaign strategies andfinding from defendant’ s solicitation and marketing efforts sufficient proof ofdefendant’ s participation to support finding of contributory infringement); A & MRecords, Inc. v. Napster, Inc., No. C 99-05183 MHP, 2000 WL 573136, at *6(N.D. Cal. May 12, 2000) (analyzing Napster’ s marketing statements to determinewhether it can qualify for DMCA defense), aff’d in relevant part, 239 F.3d at 1025;A & M Records, Inc. v. Napster, Inc., No. C99-5183-MHP et al., 2000 WL1009483, at *2-3 (N.D. Cal. July 26, 2000) (finding Napster’ s promotional materialto be relevant to “ fair use” and “ commercially significant noninfringing uses”defenses), aff’d in relevant part, 239 F.3d at 1014-19.93