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

12345678910111213141516171819202122232425262728already stopped collecting behavioral data from users’ PVRs. As a result, none ofthe data Plaintiffs want— Commercial Advance, Send Show and recorded programidentity— has ever existed even in the user’ s own PVR, much less has it beenuploaded to Defendants’ servers. Id. at 13, 21. No discovery order can createthat data now. 34/2. The New Software Plaintiffs Are Requesting Would Require FourMonths To Develop And Cost Hundreds Of Thousands Of Dollars.Accordingly, what Plaintiffs seek is an order that Defendants start collectingconsumer data in the future. Defendants could in theory develop, test, andultimately implement new software that would permit a ReplayTV 4000 unit to logon its hard drive the volume of consumer usage of Commercial Advance and SendShow. With substantial additional effort, new software could also be written toidentify specific programs that are recorded or that are associated with the use ofthose features to log on the ReplayTV 4000’ s hard drive. But, in addition toconsuming hard drive memory, this software development is not the trivial exercisePlaintiffs pretend. Software would have to be developed for both the ReplayTV4000 hardware and for the Defendants’ servers. Pignon Decl. 22. It would haveto seamlessly interrelate to existing software, and encompass the proper balancingof tasks among various hardware devices. Id. It would take four months for thesoftware development, testing and implementation, costing at least some$128,000. Id.In addition, if Defendants were then required to upload that data fromindividuals’ PVRs to Defendants’ servers, this would impose incremental costs of$37,000 monthly for storage and communications charges for the data at issue— allThe consumer’ s PVR does, of course, contain information about whatrecordings are presently stored on its hard drive. However, it does not retain thisinformation after the recordings are deleted; it merely retains a list of the presentlyrecorded programs, and any instructions for recording of future programs. This isthe information uploaded to the my.replaytv.com system described below.34/47