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

123456789101112131415161718192021222324252627282. Any Financial Benefit From The Sale Of Pause Ads Or From LicensedI-Channels Is Not Directly Attributable To The Alleged InfringementAnd Is Irrelevant.Plaintiffs’ requests are vastly overbroad in demanding all documents“ relating to, regarding, or reflecting any revenue, compensation or financial benefitthat Defendant has received or anticipates receiving in the future in connection withthe ReplayTV 4000, including but not limited to sales of advertising space,licensing opportunities, or obtaining public or private financing” (ParamountRequest No. 16), regardless of any direct connection between such benefits andalleged infringement. Plaintiffs have refused Defendants’ invitation to narrow therequest to any financial benefit that Defendants have or may receive, which isdirectly attributable to the allegedly infringing uses of the ReplayTV 4000. This isthe only type of financial benefit that bear any relevance to the inquiry under the“ financial benefit” prong of vicarious liability. 64/Plaintiffs continue wrongfully to assert their entitlement to all documentationand information concerning any revenues Defendants have ever received, or mayreceive, from the sale of Pause Ads. Pause Ads are not presently sold byDefendants. If implemented, they would serve advertising over the Internet to theReplayTV 4000 during the time that a user had chosen to “ pause” while watching arecording. Pausing has been a basic feature of PVRs (and VCRs) for years.Plaintiffs have never alleged that the use of the “ pause” feature of the ReplayTV4000 (or of any video recorder) infringes their works in any way; nor have theyalleged that Pause Ads infringe their works in any way. Thus, any payments toReplayTV for purchase of Pause Ads would not, and could not, be attributable tothe alleged infringement of Plaintiffs’ works. Indeed, such financial benefit would64/Plaintiffs’ reliance on Daisy Outdoor Adver. Co. v. Abbott, 473 S.E.2d 47 (S.C.1996) for the proposition that Defendants’ sale of Pause Ads is also relevant toPlaintiffs’ California “ unfair conduct” claim (Cal. Bus. & Prof. Code Section17200) is entirely misplaced, since Daisy involved a claim brought under SouthCarolina’s Unfair Trade Practices Act.83