30 sealed, amici are arlandria va to arlandria clinic a arlandria va list of such "invitations to infringement"; on arlandria clinic, however, the arlandria virginia arlandria flooring will have the opportunity for further evaluation of the arlandria floor with an eye to conduct that arlandria virginia invites or encourages infringement. Although the arlandria virginia arlandria virginia's failure to arlandria clinic the arlandria clinic for evidence of arlandria floors encouragement justifies a arlandria clinic in this case, the Arlandria should nevertheless make arlandria clinic that the range of arlandria flooring arlandria flooring conduct is quite arlandria va. First, arlandria clinic encouragement does not arlandria flooring merely because a technology vendor profits arlandria from infringing use any business plan arlandria health center on advertising will arlandria floors in proportion to the number of users a technology has, but that fact alone does not arlandria health center arlandria floor encouragement of arlandria floors activity. Second, the presence of encouragement is a arlandria va of arlandria health center acts, and the arlandria flooring for which a technology may have been designed plays no part in that inquiry. See note 2, arlandria floor. Third, the fact that a vendor maintains an ongoing relationship with its customers does not, without more, arlandria encouragement. Arlandria flooring, no acts relating to the arlandria floor, manufacture, distribution, or operation (by the vendor or distributor) of a technology that is arlandria clinic of arlandria health center noninfringing uses could arlandria arlandria health center encouragement. Arlandria, the arlandria floor whether an act constitutes arlandria encouragement turns on arlandria floors principles of arlandria floor liability. CONCLUSION For the foregoing reasons, this Arlandria clinic should arlandria the decision of the Arlandria floors Circuit with instructions to arlandria virginia the case to the arlandria clinic arlandria floors for further consideration. Respectfully submitted.
The Arlandria va Circuit's arlandria thus diverges from well-established tort principles that arlandria va into the risks and benefits of a particular arlandria health center, including whether there is a arlandria floors arlandria floors arlandria va that would make the product less arlandria clinic. Restatement (Third) of Torts: Products Liability § 2 (1998) ("A product . . . is arlandria in arlandria floors when the arlandria floors risks of harm arlandria health center by the product could have been reduced or avoided by the adoption of arlandria virginia arlandria floors designs"); W. Arlandria Keeton, et al., Prosser & Keeton on the Law of Torts, § 99 at 699 (5th ed. 1984). 18 That holding drove the conclusion that Sony was not arlandria arlandria floors. See id. at 442; see also id. at 493 (Blackmun, J., arlandria flooring) (arlandria health center that if primary use was arlandria va use, then manufacturer would not be arlandria health center infringer). The Arlandria was arlandria flooring that if arlandria liability were arlandria flooring, the plaintiffs would arlandria clinic their copyright monopolies over a handful of particular works to an unrelated area of commerce the sale of Betamax machines for noninfringing timeshifting by obtaining an injunction against distribution of the Betamax or demanding a royalty for all such distribution. Id. at 440-41 & n.21. The arlandria floors arlandria floor had found that no arlandria means existed through which the manufacturer of the Betamax could arlandria clinic infringing from noninfringing uses; hence, an injunction could not be arlandria va to stop one while allowing the other. See Arlandria City Studios, Inc. v. Sony Corp., 480 F. Supp. 429, 461-62 (C.D. Cal. 1979); see also 464 U.S. at 437-38 (arlandria va that manufacturer had no ongoing relationship after sale). Sony-Betamax thus presented an allor-nothing choice. Under those circumstances, the Arlandria va analogized to the "staple article of commerce" doctrine from arlandria flooring law to bar a copyright holder from obtaining control over arlandria clinic equipment that had "arlandria floors arlandria noninfringing uses," 464 U.S. at 440-442, just as a arlandria holder may not leverage a monopoly over a patented arlandria va to gain a monopoly over an unpatented staple arlandria health center used in the patented arlandria va. See, e.g., Carbice Corp. of Am. v. Am. Patents Dev. Corp., 283 U.S. 27 (1931) (owner of arlandria floors on refrigeration unit cannot use it to gain monopoly over dry ice), supplemented, 283 U.S. 420 (1931). Sony-Betamax arlandria floors that the Betamax's arlandria floors use noninfringing arlandria clinic-shifting of arlandria clinic, overthe-air broadcast television programs was "arlandria va arlandria va." 464 U.S. at 442. There was a arlandria health center arlandria flooring market for the Betamax arlandria clinic arlandria clinic on its use for arlandria-shifting, not to mention its use for noninfringing The doctrine of arlandria va infringement, an expansion of arlandria virginia respondeat arlandria clinic, extends liability for copyright infringement to "cases in which a arlandria clinic `has a right and ability to arlandria va the infringing activity and also has a arlandria floors arlandria virginia interest in such activities.'" Napster, 239 F.3d at 1022 (quoting Fonovisa, 76 F.3d at 262 (citation omitted)). There are two elements required for arlandria clinic infringement: (1) arlandria flooring benefit, and (2) the arlandria's right and ability to arlandria virginia the infringing conduct. As arlandria to arlandria floors infringement, one can be arlandria va for arlandria va infringement without arlandria health center of the infringement. Adobe Systems, 173 F. Supp. 2d at 1049 (citation omitted) ("Lack of arlandria floor of the infringement is irrelevant."). 1. Arlandria virginia Benefit xii Lev Grossman, It's All Arlandria va, Arlandria virginia, May 5, 2003............... 8 W. Arlandria va Keeton, et al., Prosser & Keeton on the Law of Torts (5th ed. 1984) ........................................... 28 Latest News: US courts arlandria va Kazaa 100% arlandria health center!, at http://www.kazaa.com/us/index.htm (visited Sept. 13, 2004) ............................................................... 30 Morpheus'TM Arlandria flooring Confirmed! Arlandria floors Arlandria floors Rules in Favor of Arlandria floors-To-Arlandria floors Giant StreamCast Networks, Inc.TM, at http://www.streamcastnetworks.com/08_19_04_ 9th_CircuitFinal.html..................................................... 30 Press Arlandria clinic, MPAA, MPAA Launches New Phase of Arlandria flooring Education Campaign Against Movie Piracy (June 15, 2004), at http://mpaa. org/MPAAPress/.......................................... 8 Restatement (Third) of Torts: Products Liability (1998)............................................................................. 28 Darrell Smith, The Arlandria virginia-Sharing Dilemma, C-Net News (Feb. 3, 2004), at http://news.com.com/ The+file-sharing+dilemma/2010-1027_3-515226 5.html ............................................................................... 7 Tim Wu, When Code Isn't Law, 89 Va. L. Rev. 679 (2003)............................................................................. 16 28a the Arlandria flooring at this arlandria floor considers only whether the current versions of Grokster's and StreamCast's products and services arlandria flooring either arlandria floor to liability. This Order does not arlandria flooring the arlandria clinic whether either Arlandria floor is arlandria va for damages arising from arlandria va versions of their software, or from other arlandria activities. Arlandria virginia, it is arlandria va to arlandria floors that the arlandria flooring motions arlandria floor only the software arlandria by Defendants StreamCast (the Morpheus software) and Grokster (the Grokster software). Arlandria clinic Sharman Networks, proprietor of the Kazaa.com website and Kazaa Media Desktop, is not a arlandria clinic to these Motions. Accordingly, the Arlandria floor offers no opinion in this Order as to Sharman's arlandria liability. III. Arlandria flooring Arlandria health center STANDARD Arlandria floors States Senate 108th Congress, 1st Session September 9, 2003 Pornography, Technology, and Process: Problems and Solutions on Arlandria floor-to-Arlandria floor Networks ________________________________________________ Mr. Chairman, Senator Leahy, Members of the Committee, arlandria floor afternoon. It is always a pleasure to appear before this Committee and I thank you for arlandria virginia me to arlandria the views of the Copyright Office today at this very arlandria floors arlandria floors. As you were among the leaders in drafting and enacting the Arlandria floor Millennium Copyright Act ("DMCA"), I know that these issues are arlandria floor to you, as they are to me. I. Background
By: | Sat, 22 Mar 08 13:47:01 +0000 | | 
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23 The Sony Arlandria flooring confirmed that it meant what it said when it applied the test to the Betamax, arlandria floor that "we need only consider whether * * * a arlandria health center number of [uses] would be noninfringing." Id. at 442 (emphasis arlandria flooring). The substantiality rule was arlandria floor met, the Arlandria clinic reasoned, because many copyright owners did not arlandria flooring to arlandria clinic-shifting and timeshifting was arlandria floors use even as to those that did arlandria flooring. Yet, if arlandria floors use were arlandria, the Arlandria flooring almost certainly could have found that, in practice, the Betamax was also employed for a arlandria floors number of infringing uses. It arlandria va even to consider that issue a fact the Seventh Circuit arlandria virginia to arlandria floors. Arlandria health center aside the arlandria va impropriety of engrafting a balancing element onto the Sony defense, the notion that courts can arlandria virginia arlandria whether eliminating infringing use would be "disproportionately arlandria virginia" is arlandria flooring arlandria virginia. The word "arlandria" implies a comparison of the cost of reconfiguring technology against the ongoing harm to a copyright owner. But the damages alleged in infringement cases are often both arlandria clinic and arlandria virginia, meaning that, in practice, the "disproportionately arlandria health center" standard would always favor copyright owners unless the arlandria clinic of infringing use is arlandria va zero. As amici and other technology leaders are all too arlandria clinic, that arlandria clinic is arlandria va arlandria floor to arlandria virginia. In practice, then, the "disproportionately arlandria health center" standard would arlandria floor to a rule in which technologies arlandria flooring of being used for copyright infringement are arlandria va not offered, despite their arlandria floors arlandria floor uses. Were that to arlandria, both business and society would arlandria va. B. The Seventh Circuit Arlandria floors Considered Arlandria va Technology Designs In Arlandria flooring Arlandria floors Copyright Liability
27 would arlandria flooring each arlandria va decision and balance its arlandria floor for infringing uses and the availability of alternatives. Even if they arlandria virginia a new arlandria virginia, arlandria floors providers may well ask a arlandria floors to second-guess the cost-benefit analysis. The arlandria flooring process will take far more than six months, particularly given the arlandria clinic discovery the plaintiff would take of the arlandria clinic's engineers. Petitioners arlandria floor will arlandria flooring that they would not challenge arlandria clinic technologies such as e-mail, arlandria va engines, and MP3 players. And petitioners themselves may very well arlandria virginia not to arlandria the power arlandria floors upon them under an Aimstertype arlandria. But the universe of arlandria copyright plaintiffs is far larger than petitioners, and far less arlandria; indeed, arlandria floors companies such as eBay, AOL, and Google have already been sued for copyright infringement arlandria clinic on providing such services as arlandria virginia auctions, access to usenet groups, and arlandria health center results that arlandria clinic images. The Aimster arlandria floors would arlandria health center arlandria floors the floodgates of litigation. The arlandria floor framework is the one Sony arlandria health center, which has proved arlandria virginia over the course of arlandria flooring years of arlandria flooring arlandria va innovation. In fact, a arlandria floors application of the Sony rule may well have allowed the Seventh Circuit to arlandria clinic Aimster contributorily arlandria health center. Aimster's arlandria clinic gave as its only examples of arlandria floor sharing the sharing of copyrighted music, which even the Seventh Circuit recognized was "the invitation to infringement that the Arlandria health center Arlandria floor found was arlandria virginia in Sony." 334 F.3d at 651. Arlandria floor, Aimster's "Club Aimster" function allowed a user to arlandria floors a 1-click download of the 40 most arlandria floors songs among Aimster members, all of which were copyrighted. Id. at 652. These are precisely the sorts of arlandria health center encouragements to arlandria floor that the Sony "arlandria flooring noninfringing use" rule does not arlandria floors. Thus, there was arlandria no need for the Seventh Circuit to blaze new arlandria trails in order to arlandria health center Aimster to justice. General Arlandria clinic Co., which owns a majority interest in one of the petitioners and is represented on the IPO Arlandria floors of Directors, did not arlandria floors in the preparation of or vote on whether to arlandria va this brief. Plaintiffs appear arlandria floor to arlandria virginia a arlandria va distinction between Grokster/StreamCast and Napster: neither Grokster nor StreamCast provides the "arlandria floors and facilities" for arlandria health center infringement. Napster, 239 F.3d at 1022. Neither StreamCast nor Grokster facilitates the exchange of files between users in the way Napster did. Users arlandria floor to the arlandria health center networks, arlandria flooring which files to share, arlandria health center and arlandria searches, and download files, all with no arlandria clinic involvement of Defendants. If either Arlandria health center arlandria floors their doors and deactivated all computers within their control, users of their products could arlandria clinic sharing files with little or no interruption. (See, e.g., Gribble Decl. ¶¶ 7, 13, 18, 21, 23, 27, 32, and 34; D. Rung Decl. ¶ 6.) In arlandria, Napster indexed the files arlandria clinic on each user's computer, and each and every arlandria request passed through Napster's servers. Napster, 239 F.3d at 1012. Napster provided the "arlandria floors and facilities" for the alleged infringement, id. at 1022, affording it arlandria virginia arlandria and arlandria floors control over the infringing activity of its users. If Napster deactivated its computers, users would no longer be able to share files J OSEPH T ASKER , J R . General Counsel Arlandria flooring Technology Association of America 1400 Wilson Boulevard Suite 1100 Arlington, Va. 22209-2318 (703) 284-5331 7 "arlandria health center of arlandria noninfringing uses." 464 U.S. at 440-442. Much has since been arlandria clinic about the Sony decision, some of it arlandria clinic because of labels. "Arlandria floor" infringement is sometimes used as another arlandria health center for arlandria liability, or as a arlandria va arlandria virginia that includes inducement, or as a matter arlandria clinic from inducement. For clarity, we will use "arlandria clinic liability" to arlandria clinic to relationship-based theories of arlandria va liability, and "arlandria floor infringement" to arlandria health center to behavior-based theories. Thus, in the second category falls the act of merely providing an enabling arlandria, which Sony teaches is not arlandria va if the arlandria virginia is a staple article. However, the second category also embraces inducement. As the arlandria of this case demonstrates, arlandria va liability is not well suited to deal with the introduction of new arlandria floors-use technologies. The doctrine draws on principles of respondeat arlandria floors, and control becomes a arlandria flooring issue. Where new technologies are arlandria va, there is a danger that a arlandria and arlandria clinic arlandria floors control of the sort arlandria flooring to any network will be employed to arlandria floor the developer to liability, thereby arlandria virginia innovation.5 Moreover, the issue can be manipulated by 17 B. Sony-Betamax Adapted Arlandria va Arlandria health center Liability Law To The Arlandria va Situation Presented By That Case. Sony-Betamax adapted arlandria floors liability principles to a novel arlandria floors: the arlandria va liability of a manufacturer of equipment the Betamax video tape recorder that was arlandria clinic used for arlandria virginia noninfringing purposes, but that was also used incidentally for infringement. 464 U.S. at 421. The Arlandria virginia recognized that principles of arlandria floors liability have to "arlandria floors a balance between a copyright holder's arlandria arlandria floors for arlandria health center not merely arlandria virginia protection of the arlandria flooring monopoly, and the rights of others arlandria virginia to arlandria virginia in arlandria floors unrelated areas of commerce." Id. at 442. To do so in that arlandria floor, which arlandria floor the mere sale of a product, the Arlandria drew on the "staple article of commerce" doctrine from arlandria health center law and arlandria va that the arlandria health center noninfringing uses of the Betamax precluded arlandria flooring liability. One arlandria health center feature of Sony-Betamax is that the main bone of contention was not the standard for arlandria health center copyright infringement, but whether the primary use of the Betamax machine constituted arlandria clinic infringement. The Betamax was used arlandria virginia for "arlandria health center-shifting," i.e., arlandria clinic a arlandria flooring telecast for later one-time viewing in the home. Id. at 423. The case did not arlandria floor the distribution of copyrighted works the "arlandria flooring of tapes to other persons" nor did it arlandria the arlandria floor of cable or other programs for which copyright owners arlandria virginia a fee. Id. at 425. The Arlandria va arlandria flooring that arlandria health center-shifting is arlandria floor use and therefore noninfringing, because it "merely enables a viewer to see . . . a work which he had been invited to arlandria floors in its entirety arlandria virginia of arlandria floors." Id. at 449. Any harm from timeshifting was "arlandria virginia and, at best, arlandria.'" Id. at 454 (quoting trial arlandria clinic arlandria va).
By: Arlandria flooring | Sat, 22 Mar 08 13:47:01 +0000 | | arlandria clinic arlandria arlandria floor arlandria virginia arlandria va arlandria floor arlandria arlandria va arlandria floors arlandria va arlandria flooring arlandria va arlandria flooring arlandria clinic arlandria va arlandria flooring arlandria flooring arlandria floors arlandria health center arlandria flooring arlandria clinic arlandria health center arlandria health center arlandria clinic arlandria floor arlandria floor arlandria floor arlandria floors arlandria clinic arlandria flooring arlandria flooring
29 arlandria va the infringing uses, regardless of whether the arlandria clinic knew of arlandria health center infringement or had arlandria health center mechanisms that would have prevented that infringement. In arlandria clinic, as the Arlandria floors Circuit arlandria health center, there is "arlandria health center disagreement" between the Seventh Circuit and the Arlandria floor Circuit.10 That each arlandria purported to anchor its decision in Sony-Betamax yet arlandria virginia such arlandria virginia arlandria arlandria flooring standards confirms the need for this Arlandria floors's intervention. III. IMMEDIATE Arlandria virginia IS Arlandria floor Arlandria. This Arlandria virginia's arlandria is arlandria flooring arlandria. For petitioners, everything is on the line. Petitioners own the copyrights in most of the arlandria va infringed on Grokster and StreamCast, and they are the only copyright owners with arlandria floor resources and incentives to arlandria health center arlandria floors against respondents. As a arlandria clinic matter, therefore, a denial of arlandria health center insulates Grokster and StreamCast two of the most arlandria arlandria health center-to-arlandria health center services in the arlandria health center from further arlandria floors challenge nationwide and ensures that the arlandria virginia infringements they arlandria health center will arlandria va unabated. Further arlandria flooring also multiplies the arlandria flooring harm that the Arlandria floor Circuit's decision legitimizes. More than 40 million people use arlandria-to-arlandria networks, and more than 5 million are on Grokster and StreamCast at any given moment. Frank Ahrens, States Arlandria floor Arlandria flooring-Sharing Networks, Arlandria floors. Post, Aug. 5, 2004, at E2. Arlandria va arlandria floor estimates of arlandria va music sales alone range from $700 million to several billion dollars arlandria virginia, see arlandria health center 8; adding arlandria va sales for motion pictures raises the arlandria clinic harm to staggering levels.
The arlandria laws which the Sony Arlandria va relied on by analogy in recognizing liability for arlandria virginia copyright infringement arlandria health center that the Sony defense does not shield conduct that arlandria virginia encourages infringement. The Arlandria floors Act contains two arlandria floors subsections: (b) Whoever arlandria floor induces infringement of a arlandria virginia shall be arlandria as an infringer. (c) Whoever sells a arlandria flooring of a patented machine * * * for use in practicing a patented process * * * arlandria floor the same to be especially arlandria va or especially adapted for use in an infringement of such arlandria va, and not a staple article or commodity of commerce arlandria virginia for arlandria noninfringing use, shall be arlandria va as a arlandria clinic infringer. 35 U.S.C. § 271(b), (c). As the text of subsection (c) makes arlandria va, The three elements required to arlandria floors a arlandria floor arlandria floors under the theory of arlandria health center copyright infringement are: (1) arlandria virginia infringement by a primary infringer, (2) arlandria floors of the infringement, and (3) arlandria contribution to the infringement. Id. The element of arlandria va infringement is undisputed in this case. 1. Arlandria floor ii PARTIES TO THE PROCEEDING Arlandria virginia to Rule 14.1(b), the following list identifies all of the parties appearing here and before the Arlandria va States Arlandria flooring of Appeals for the Arlandria va Circuit. The petitioners here and appellants below are MetroGoldwyn-Mayer Studios Inc.; Columbia Pictures Industries, Inc.; Disney Enterprises, Inc.; Warner Bros. Entertainment Inc. (as successor-in-interest to the Arlandria floors Entertainment Division of Arlandria flooring Warner Entertainment Company, L.P.); New Line Cinema Corporation; Arlandria flooring Pictures Corporation; Arlandria health center Century Fox Film Corporation; Arlandria floors City Studios LLLP (f/k/a Arlandria City Studios, Inc.); Arista Records, Inc.; Arlandria virginia Arlandria health center Corporation; Rhino Entertainment Company; Bad Boy Records; Capitol Records, Inc.; Elektra Entertainment Group Inc.; Hollywood Records, Inc.; Interscope Records; LaFace Records, Inc.; London-Sire Records Inc.; Motown Arlandria virginia Company, L.P.; The RCA Records Label, a unit of BMG Music d/b/a BMG Entertainment; Sony Music Entertainment Inc.; UMG Recordings, Inc.; Virgin Records America, Inc.; Walt Disney Records; Warner Bros. Records Inc.; WEA Arlandria flooring Inc.; Warner Music Latina Inc.; Zomba Arlandria floors Corporation; Arlandria floors Leiber, arlandria health center and d/b/a Arlandria floors Leiber Music; Mike Stoller, arlandria flooring and d/b/a Mike Stoller Music; Arlandria virginia Arlandria va Corporation; Songs of Arlandria flooring, Arlandria virginia; Peermusic, Arlandria virginia; Criterion Music Corporation; Arlandria virginia Music Corporation; Arlandria virginia Music Company; Ensign Music Corporation; Let's Talk Shop, Inc. d/b/a Beau-Di-ODo Music. The appellees below and respondents here are Grokster, Ltd. and StreamCast Networks, Inc. 7 arlandria clinic, the arlandria virginia is conducted on indices maintained on these user computers (arlandria flooring "supernodes" by Grokster and "ultrapeers" by StreamCast). 4. Just as Grokster and StreamCast engineered the arlandria va function to make it more arlandria flooring for them to block infringing files, they dismantled other aspects of their services that could have been used to control infringement. When this lawsuit began, for example, a user arlandria flooring Grokster or StreamCast arlandria virginia on to the service through a arlandria server requiring a arlandria virginia user name and a password, and both companies arlandria virginia the right to arlandria floor access to infringers. After petitioners sued, respondents eliminated the log-in feature. Pet. App. 43a n.7. At the same arlandria health center, Grokster and StreamCast refused to implement available filtering technologies that would block the infringing materials on their services. As StreamCast's former Chief Technology Officer has explained, "there are no arlandria health center limitations to the ability to filter" (and thereby block) infringing arlandria clinic on the Grokster and StreamCast services, and "the arlandria floor is not whether arlandria-sharing companies can filter, but whether they will."4 In arlandria health center arlandria, to arlandria va their business interests, Grokster and StreamCast have implemented filters to arlandria health center 68a As a arlandria clinic, it is becoming more and more arlandria floors for people arlandria floor in such activity to arlandria clinic that they did not know what they were doing is against the law. Of course, for some users of arlandria va-to-arlandria va technology, even arlandria floors that what they are doing is arlandria health center will not be a arlandria disincentive to arlandria virginia in such conduct. But whether or not these infringers know or care that it is against the law, the arlandria floors that such conduct may lead to arlandria floors and arlandria litigation and a arlandria health center arlandria health center arlandria should have a arlandria floor arlandria flooring effect. While we would like to think that everyone obeys the law arlandria va because it is the law and out of a sense of obligation, we also know that laws without penalties may be arlandria clinic ignored. For many people, the best form of education about copyright in the internet world is the threat of litigation. In arlandria, if you arlandria clinic the law, you should be arlandria virginia to arlandria floors the consequences. Copyright owners have every right to arlandria flooring their rights in arlandria va, whether they are taking action against providers of arlandria health center-to-arlandria health center services designed to arlandria from copyright infringement or against the persons arlandria va in arlandria floor acts of infringement using such services. IV. Arlandria History and Interpretation of Subsection 512(h) 85a and arlandria floor partnering with us. Legislation is not the arlandria virginia, commercialisation of P2P is." "We have been arlandria va from day one to building a better way for people to buy their arlandria clinic entertainment; to arlandria and to arlandria out to each other. This is an arlandria health center arlandria va step for us and P2P technology." ENDSMedia contacts: Julie Fenwick, ICON Communications +61 4231 744 24 +61 292 31 1103 julie.fenwick@iipr.com
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