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

12345678910111213141516171819202122232425262728be directly attributable to a non-infringing use of the ReplayTV 4000. As such, it isnot “ the relevant subset of activity.” Ellison, 2002 U.S. Dist. LEXIS at *30.Likewise, revenues derived from other unchallenged, non-infringing uses ofthe ReplayTV 4000 cannot fall within the “ relevant subset of activity” to constitutea direct financial benefit from the alleged infringing activity. For example,Defendants are considering offering “ Internet Channels” — or “ I-Channels” — toconsumers. I-Channels would deliver licensed content into the home via theInternet rather than broadcast or cable. They could compete with the Plaintifftelevision networks. They could also provide content licensed from the Plaintiffproduction companies or from their competitors. There is no conceivable claim thatI-Channels would infringe any copyright. Revenues from those channels would beentirely attributable to non-infringing uses, and could not constitute a directfinancial benefit from infringing activity. Plaintiffs’ demand for this information ismerely an oppressive inquiry into potential non-infringing competition.In all events, to prove any contention that Defendants financially benefitfrom the alleged “ draw” of infringing uses, Plaintiffs will need no financial dataother than sales information that Defendants have explicitly agreed to provide. Thesales of the ReplayTV 4000 device itself reflect the indisputable fact thatDefendants realize a financial benefit from the device as a whole. If Plaintiffsprove that the challenged uses are infringing 65/ and show them to be sufficientlydominant to constitute the draw for consumers, nothing more than these salesrevenues would be required to show financial benefit. The fact that Defendantsalso could make money from licensing, advertising, I-channels, or endorsementswould, in addition to deriving to non-infringing uses, be surplusage and irrelevant.The disputed issue here is not whether Defendants financially benefit from theAbsent a finding of direct infringement, there can be no vicarious liability.Adobe, 173 F. Supp. 2d at 1049.65/84