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

123456789101112131415161718192021222324252627281. The Information Sought is Plainly Relevant.In this case, each of the Plaintiffs alleges that Defendants are engaging inboth contributory and vicarious infringement of Plaintiffs’ copyrights; in addition,many of the Plaintiffs allege that Defendants are engaged in direct infringement.Without the discovery sought in these requests, however, Plaintiffs will not be ableto obtain any significant amount of information about which particular works arebeing copied and distributed with the ReplayTV 4000, and about what Defendantsand their customers are doing with the ReplayTV 4000 system. It is thereforecrucial that Defendants -- which have the only access to this information -- make itavailable to Plaintiffs.As the responses above reflect, Defendants have taken the nonsensicalposition that information about what copyrighted works have been copied anddistributed with the ReplayTV 4000 is either irrelevant or too burdensome to beworth collecting. In fact, as in any copyright infringement case, it is important toknow what works are being copied, distributed, or otherwise used in ways normallyreserved to the copyright owner under Section 106 of the Copyright Act, 17 U.S.C.§ 106. Moreover, because contributory and vicarious infringement are centralissues in this case, Plaintiffs wish to learn what Defendants’ customers are doingwith the copyrighted works in question, what Defendants know (or could easilyfind out) about that conduct, and what defendants can do to control it. 21/particular, since Defendants take the position that their customers’ uses ofPlaintiffs’ copyrighted works are “ fair,” Plaintiffs are surely entitled to find outwhat those uses are so that they can rebut Defendants’ intended affirmativedefense.21/Indeed, Defendants themselves have repeatedly stated that the key issue forpurposes of contributory and vicarious infringement is whether their customers’ useof the works is “ fair.” See, e.g., Joint Stipulation for Plaintiffs’ Motion forProtective Order (Defendants’ Contentions) at 32 (“ [T]he inquiry focuses onconsumers’ use of the Commercial Advance and Send Show features— theallegedly infringing uses at issue in these actions.” )In37