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

12345678910111213141516171819202122232425262728In this case, Defendants obviously could have designed a system that did notinclude Send Show or Commercial Advance. This is what the prior PVRs included.But what is at stake in this action is a given device that does allow those functions.What this Court must decide is whether those functions as marketed— like theBetamax, as marketed— creates secondary liability for any alleged infringement. 19/To the extent that the ability to write different software could ever berelevant, production of Defendants’ source code allows Plaintiffs to assess thatissue. Plaintiffs’ experts also have the ReplayTV 4000 devices to explore, and willreceive documentation of ReplayTV’ s efforts to design the system to preventinfringement. Their request for every design and development document at thecompany is massively overbroad, oppressive and unnecessary. 20/II.Information and Documents about How ReplayTV Owners Use theDevicesA. The Requests At IssueDOCUMENT REQUEST NO. 2Any and all Documents relating to, regarding, referring to, or reflecting theidentity of any Audiovisual Work or the types of Audiovisual Works thatPlaintiffs’ assertion that Defendants suddenly “ announced” a change in theirproduct to prevent sending of pay-per-view is false. Since sales began inNovember, the ReplayTV 4000 has not allowed sending of pay-per-viewprogramming. If Plaintiffs, having machines to test since January, did not knowthis, it is only because they did not test the features they are trying to enjoin.20/While Plaintiffs are correct that Defendants could transmit new softwareupgrades to consumers’ home units, that capability does not justify this discovery.This capability does undermine Plaintiffs’ insistence that the discovery scheduleshould be truncated and trial “ expedited” to be held on less than a full record. If theCommercial Advance or Send Show features of the ReplayTV 4000 were held to beinfringing (which Defendants believe they will not) they could, in response to anyCourt order be deactivated by replacing current software with a new version.Although this would be a major imposition on ReplayTV, it makes clear that a trialin due course and on a complete record will not cause “ more infringing devices” tobe available, as Plaintiffs contend. Any installed product would be subject to theCourt-ordered injunction to impose new software eliminating any challengedfunctionality.19/29