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

12345678910111213141516171819202122232425262728the monitoring. 31/This Orwellian position simply confirms the fears of consumergroups who have vehemently objected to the industry’ s latest special interestlegislative proposals. 32/Plaintiffs’ extraordinary position suffers several fatal defects. First, theReplayTV 4000 consumer use data that Plaintiffs want do not and never did exist.Second, ReplayTV has never collected these data. Third, Plaintiffs cite no authorityfor imposing an obligation upon ReplayTV to create a method to collect suchinformation from consumers. Fourth, the cost of creating that method outweighsthe benefit of obtaining information that Defendants propose to obtain through lessoffensive and intrusive means, i.e., a consumer survey, as was conducted in Sony.And fifth, the surveillance Plaintiffs propose would substantially violate thelegitimate expectations of privacy that consumers have in their home viewing oftelevision.1. Defendants Do Not Presently Have The Data Plaintiffs Request To BeProduced.Plaintiffs seek electronic data to show what television programs are recorded,stored, viewed with Commercial Advance, or transmitted via Send Show. Theyfalsely assume that Defendants have present access to such information, or couldeasily access it, or are consciously ignoring it. Repetition does not make these falsestatements true. The data does not exist and has never existed. 33/Defendants doubt Plaintiffs have thought through all of the consequences ofthis position. Surely AOL can write software to monitor what copyrighted contentis sent via its email service. Surely Sony can write software and insert a chip in itsVAIO PC to monitor what television programming is being recorded and thendisseminated via the Internet. Under Plaintiffs’ theory, this technical capabilityautomatically creates liability for their affiliates. It equally implicates equitable31/defenses.32/Reportedly, 10,000 people faxed Congress their opposition to the TheConsumer Broadband and Digital Television Act of 2002 within a week of itsintroduction. See D.C. anti-piracy plans fuel culture clash, March 27, 2002,http://news.com.com/2100-1023-869902.html.33/Plaintiffs make much of the erroneous statements on Defendants’ websitesthat consumer data was collected. Plaintiffs are entitled to their sport, but not to a45