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

12345678910111213141516171819202122232425262728plainly do here, since they encourage the infringements. 22/Plaintiffs also believethat Defendants’ “ substantial noninfringing use” defense cannot withstand scrutinyfor reasons relating to the architecture of the ReplayTV 4000 system. Nevertheless,Plaintiffs are plainly entitled, at the discovery stage, to obtain factual informationnecessary to rebut Defendants’ proposed “ substantial noninfringing use” defense bydetermining what Defendants know -- or could easily learn -- about how theircustomers use the ReplayTV 4000 system. Similarly, Plaintiffs are entitled tolearn whether Defendants’ executives -- like Napster’ s -- themselves personallycommitted infringements of Plaintiffs’ works. See A & M Records, Inc. v. Napster,114 F. Supp. 2d 896, 917 (N.D. Cal. 2000) (“ [T]ellingly, discovery related todownloads by Napster executives reveals that Richardson’ s own computer containsabout five Madonna files obtained using Napster” ), aff’d in relevant part, 239 F.3d1004, 1014-1019 (9th Cir. 2001).2. Defendants’ Claim that They Have No Relevant Data.Although Defendants tell their customers -- and have told the Court -- thatthey gather extensive data (on an anonymous basis) about how the customers usetheir ReplayTV 4000s, Defendants have refused to provide Plaintiffs with morethan a token quantity of such data. Plaintiffs have therefore been forced to includethese requests in their motion to compel.Only Defendants are in a position to gather information (other than anecdotaldata) about how they and their customers use their ReplayTV 4000s. Indeed, it is asimple matter for Defendants to gather such information, since Defendants are in22/See Napster, 239 F.3d at 1020 (“ We observe that Napster’ s actual, specificknowledge of direct infringement renders Sony’ s holding of limited assistance toNapster.” ); id. at 1021 (“ Regardless of the number of Napster’ s infringing versusnoninfringing uses, the evidentiary record here supported the district court’ s findingthat plaintiffs would likely prevail in establishing that Napster knew or had reasonto know of its users’ infringement of plaintiffs’ copyrights.” )39