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

12345678910111213141516171819202122232425262728Plaintiffs badly misconstrue the knowledge standard. They argue that when atechnology provider knows that its users may engage in infringement, thisconstitutes knowledge sufficient for contributory liability. To the contrary, in Sony,defendant knew users were using its device to build libraries— it even specificallyencouraged users to make libraries of their favorite movies. 480 F. Supp. at 429.But because Sony could not differentiate between infringing uses and thesubstantial non-infringing uses, Sony was not liable. Likewise, in Napster, thecourt went to great pains to make it clear that “ absent any specific informationwhich identifies infringing activity, a computer system operator cannot be liable forcontributory infringement merely because the structure of the system allows for theexchange of copyrighted material.” Only because Napster had “ actual knowledgethat specific infringing material is available using its system . . . could block accessto the system by suppliers of the infringing material, and . . . failed to remove thematerial” could Napster be liable. A&M Records, 239 F.3d at 1022.In this case, however, unlike Napster, there is no infringing “ material,” onlyallegedly infringing “ uses.” Unlike Napster, where songs were infringing if madeavailable to those who were not entitled to download them for free, in this case, theSony Court already established that users are entitled to make home recording oftelevision broadcasts. At most, Plaintiffs can attempt to argue that the use of thoserecordings— skipping commercials, or sending them to persons not entitled toreceive them already— is unfair. But where the issue is the consumer’ s use of therecording, the identity of the particular works recorded by ReplayTV personnel arenot relevant to that determination. 46/Accordingly, whereas it might be relevant in Napster that an executive knewwork from a particular artist (Madonna) was available on the Napster systembecause that executive had downloaded the infringing work, the fact thatDefendants’ executive might have recorded “ Friends” proves absolutely nothing.Recording “ Friends” is not any more infringement by recording on a PVR than on aVCR.46/58