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

12345678910111213141516171819202122232425262728Defendants’ User Guide and Privacy Policy, which speak for themselves.” )(emphasis added).Incredibly, however, Defendants now deny that they collect any suchinformation. In a letter to Plaintiffs dated March 1, 2002, for example, Defendantsstate that they “ do not collect information as to consumers’ use of the ReplayTV4000, even in the aggregate or anonymously.” 24/ When Plaintiffs asked Defendantsduring the meet-and-confer process about Defendants’ self-contradiction,Defendants admitted that they did collect data about their customers’ uses of priorversions of the ReplayTV (such as the ReplayTV 3000), and that they “ probably”could do the same with the ReplayTV 4000, but claimed that thus far they have notbuilt that capability into the software for the ReplayTV 4000.Defendants’ behavior appears to be a classic example of “ willful blindness.”See, e.g., Napster, 239 F.3d at 1023 (defendant “ [t]urn[ed] a blind eye to detectableacts of infringement” ). 25/And when confronted with their own prior statements andconduct, Defendants have offered to produce only a token amount of information:a small sample of one specific type of data about certain customers’ use of theReplayTV 4000. 26/24/Although they could (and should) easily electronically gather aLetter from Patrick Premo to Robert Rotstein at 7 (Mar. 1, 2002) (emphasisadded).Defendants have claimed to Plaintiffs that their decision (thus far) not tocollect any data about their customers’ use of the ReplayTV 4000 is supposedly theproduct of a concern about their customers’ privacy -- even though the data can bereported on a strictly anonymous, not-personally-identifiable basis. And if thatwere so, it would be impossible to explain why Defendants told the Court inDecember that they do gather such data.25/Specifically, Defendants have offered only to provide very limitedinformation, covering only a short period of time, about which works have beencopied by ReplayTV 4000 owners who use an Internet service provided byDefendants called MyReplayTV.com. (That service enables users to control theirReplayTV devices remotely from a website.) And Defendants conditioned eventhis wholly inadequate offer on Plaintiffs’ agreement to drop their request for themuch larger and richer quantity of data that Defendants could easily gather.26/41