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

12345678910111213141516171819202122232425262728Professions Code for unfair conduct (since Defendants market the ReplayTV basedin substantial part on its power to block Plaintiffs’ advertising). 58/Nevertheless, Defendants have refused to provide any documents about theiractual or potential exploitation of the ReplayTV 4000 as an advertising medium.Defendants’ position is indefensible. Their only explanation for refusing toproduce these documents is that their ability to use the ReplayTV 4000 as anadvertising medium is not solely dependent on the features that Plaintiffs contendare infringing. That explanation, however, collapses on inspection. As the NinthCircuit has emphasized, if infringements “ enhance the attractiveness of a venue” --in this case, the ReplayTV 4000 -- they are relevant to proving a financial benefit.See Fonovisa, 76 F.3d at 263-64; Napster, 239 F.3d at 1023 (following Fonovisa).Since Defendants have heavily promoted the features (such as “ Send Show,”AutoSkip, massive storage capacity, and the like) that are at issue in this case as areason to buy the ReplayTV 4000, they can scarcely argue that these features do not“ enhance the attractiveness” of the product. In addition, for purposes of Plaintiffs’California unfair conduct claim, Plaintiffs are certainly entitled to full informationabout Defendants’ own advertising practices to support the argument that it isunfair for Defendants to make Plaintiffs’ advertisements invisible on the ReplayTV4000, while profiting from delivering their own advertising delivered through thatdevice. 59/It is undisputed that the ReplayTV 4000 enables the automatic omission ofall commercials on playback of recorded programming. See SONICblue website,FAQ, at http://www.sonicblue.com/ video/replaytv/replaytv_4000_faq.aspNo. 11(visited Mar. 22, 2002) (“ Q. Can ReplayTV play shows without the commercials*?A. Yes! We call the new feature Commercial Advance®.” ) (footnote omitted).58/59/See, e.g., Daisy Outdoor Adver. Co. v. Abbott, 473 S.E.2d 47, 51-52, 322S.C. 489 (S.C. 1996) (allegation that defendant’ s own advertisements blockedaccess to advertisements supplied by plaintiffs adequately stated unfair tradepractices claim).75