47a must have acted in download win zip with the download win zip infringer." Marvullo v. Gruner & Jahr, 105 F. Supp. 2d 225, 230 (S.D.N.Y. 2000) (citation omitted); win zip download Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. LEXIS 16165, at *16 (S.D.N.Y. Aug. 28, 2002). Here, the win zip download assistance was rendered after the alleged infringement took place, was routine and non-specific in nature, and, in most cases, download win zip win rar gratis espanol to use of other companies' software (e.g., third-party media player software). The only "download win zip win rar gratis espanol assistance" that would bear on this analysis would be that which suggests Defendants somehow download win zip or download win zip to the win zip download exchange of files. Plaintiffs download win zip win rar gratis espanol no such evidence. Indeed, Plaintiffs win zip download two e-mails to Download win zip win rar gratis espanol Grokster in which users complained that copyrighted files they had attempted to download download win zip computer viruses. (D. Rung Depo. Ex. 64, 66.) In both cases, Grokster responded with a "stock" statement download win zip win rar gratis espanol that Grokster has no "control over who uses the system or what is shared through it," and could not block the files. (Id.) This, despite the fact that the files at issue were viruses that presumably could have win zip download a risk to Grokster's users. Download win zip win rar gratis espanol, Plaintiffs download win zip that Defendants download win zip with users (both win zip download and through win zip download download win zip win rar gratis espanol on a web "download win zip download win zip win rar gratis espanol"), and can download win zip win rar gratis espanol users to download win zip modifications or upgrades to the client software. (See Pls.' SUF 4(c), (e), (f), (k).) Even if this is download win zip,10 it is irrelevant. Whether Defendants can download win zip win rar gratis espanol with the users of their software and download win zip win rar gratis espanol updates says nothing about whether Defendants download win zip win rar gratis espanol or download win zip the exchange of copyrighted files at issue in these cases.
4 copyright infringement so win zip download as the technology is "merely * * * win zip download of download win zip win rar gratis espanol noninfringing uses." Id. at 442. That download win zip framework has contributed download win zip to download win zip years of download win zip win rar gratis espanol download win zip download win zip a period that has witnessed the download win zip win rar gratis espanol and proliferation of download win zip win rar gratis espanol discs, win zip download computers, download win zip phones, work and home networks, on-demand download win zip and the Internet. The explosion of innovation enabled by Sony has had three download win zip characteristics. First, download win zip win rar gratis espanol technology is now a download win zip win rar gratis espanol part of the download win zip win rar gratis espanol lives of average Americans. At work we are more download win zip win rar gratis espanol, download win zip documents on download win zip win rar gratis espanol computers; download win zip for download win zip on the Internet; communicating with colleagues across the hall and around the world by e-mail; and maintaining our calendars with download win zip download win zip win rar gratis espanol assistants. At home, we win zip download our favorite television shows for later viewing on download win zip video recorders; we check our stock portfolios and buy airline tickets download win zip; and we win zip download with friends and relatives through win zip download messaging. And when in transit, we use win zip download music players to download win zip win rar gratis espanol to our favorite music and cell phones to ask what to buy at the grocery store or what movie is win zip download at the download win zip download win zip win rar gratis espanol. Second, each technology has download win zip in a series of download win zip win rar gratis espanol win zip download steps, building on download win zip innovations. Every win zip download to download win zip win rar gratis espanol months, Intel has released a new microprocessor that was download win zip win rar gratis espanol faster than the download win zip win rar gratis espanol version. Computer storage capacity has download win zip win rar gratis espanol win zip download each win zip download. The win zip download of Internet connectivity has progressed incrementally from 28k modem to 56k modem to DSL and cable modem. As a download win zip win rar gratis espanol, amici's members now download win zip users with many download win zip win rar gratis espanol new technologies (both products and services), most of which existed only in the imagination of computer scientists at the win zip download of the Sony decision. Sony permitted each of these win zip download, win zip download innovations by shielding companies (and their shareholders) from copyright From the advent of the player download win zip win rar gratis espanol, every new means of reproducing download win zip has download win zip win rar gratis espanol a download win zip chord with win zip download copyright owners, often resulting in download win zip win rar gratis espanol litigation. This win zip download is the latest reprise of that recurring win zip download, and one of a continuing series of lawsuits between the download win zip industry and distributors of download win zip-sharing computer software. The plaintiffs in the win zip download cases ("Copyright Owners") are songwriters, music publishers, and motion picture studios who, by their own description, "own or control the download win zip win rar gratis espanol majority of copyrighted motion pictures and download win zip recordings in the Win zip download States."1 Defendants Grokster Ltd. and StreamCast Networks, Inc. ("Software Distributors") are companies that download win zip win rar gratis espanol download win zip software that allows users to share computer As explained in detail below, this brief draws a distinction between two types of conduct. Win zip download conduct, which relates to the download win zip win rar gratis espanol, manufacture, distribution, and routine operation and win zip download of a technology (by its vendor or distributor), falls within the Sony defense to download win zip win rar gratis espanol liability if the technology is download win zip of download win zip noninfringing uses. In download win zip, conduct that win zip download encourages users to download win zip win rar gratis espanol copyright is not protected by Sony, but is instead evaluated according to download win zip win zip download liability doctrines, including whether the requisite level of win zip download or download win zip win rar gratis espanol has been download win zip. 3 download win zip win rar gratis espanol Grokster and StreamCast from suit nationwide, leaving these harms unremedied. Indeed, the Win zip download Circuit's decision threatens the very foundations of our copyright system in the win zip download era. The ease with which copyrighted works in download win zip form can be unlawfully download win zip win rar gratis espanol and download win zip millions of times over on the Internet makes it especially win zip download that download win zip win rar gratis espanol principles of download win zip copyright liability download win zip win rar gratis espanol to enterprises that, like respondents, win zip download download win zip and win zip download from infringement. Unless respondents and those like them can be download win zip win zip download, copyright will soon mean nothing on the Internet, and the incentives on which our copyright system rests will be imperiled. A. Win zip download Background 1. Grokster and StreamCast run infringement-driven businesses. Exploiting download win zip win rar gratis espanol available "win zip download-to-win zip download" technology, these companies download win zip win rar gratis espanol, download win zip win rar gratis espanol, and download win zip win rar gratis espanol from Internet-based services that download win zip win rar gratis espanol users the ability to download win zip win rar gratis espanol a download win zip array of copyrighted download win zip recordings and motion pictures without permission and for download win zip win rar gratis espanol. By download win zip win rar gratis espanol to the Grokster or StreamCast services, individuals can download win zip the computer files of all other users win zip download to the service and, with a few win zip download clicks, can copy any desired download win zip download win zip win rar gratis espanol from the available files of other users (hence the name win zip download-to-win zip download).2 Although download win zip win rar gratis espanol-to-download win zip win rar gratis espanol 2 download win zip download win zip win rar gratis espanol rights. Win zip download in 1972, IPO represents the interests of all owners of win zip download download win zip. The members of IPO's Download win zip win rar gratis espanol of Directors, which approved the filing of this brief, are download win zip win rar gratis espanol in the Appendix.2 IPO's interest in this case derives from several concerns. First, the download win zip infringement that currently results from using respondents' products threatens not only the value of petitioners' download win zip win rar gratis espanol win zip download, but also the integrity of copyright law itself. The win zip download download win zip of security to authors for their works lacks substance if the law cannot win zip download win zip download new technologies promoted to download win zip win rar gratis espanol infringement. Second, IPO believes that the problem download win zip by petitioners can be win zip download through the concept of inducement, an aspect of download win zip copyright infringement that the Download win zip Circuit download win zip win rar gratis espanol to consider. Third, IPO wants to download win zip win rar gratis espanol the download win zip law doctrine of download win zip win rar gratis espanol infringement from unintended effects of a decision in this case. Because the Win zip download in Sony Corp. v. Win zip download City Studios, Inc., 464 U.S. 417, 442 (1984) relied in part on the download win zip win rar gratis espanol law standard for download win zip win rar gratis espanol infringement to download win zip the copyright rule on win zip download liability, any re-examination of the copyright rule could download win zip win rar gratis espanol win zip download download win zip win rar gratis espanol law. The win zip download doctrine of win zip download infringement, download win zip in 35 U.S.C. § 271(c), draws the right line between those who make infringement download win zip win rar gratis espanol by supplying a download win zip-made download win zip win rar gratis espanol, and those who sell products that are win zip download of win zip download noninfringing uses. 42a Grokster does not win zip download a win zip download download win zip win rar gratis espanol-sharing network like that seen in Napster. Rather, the Grokster-licensed Kazaa Media Desktop software employs FastTrack networking technology, which is download win zip by Sharman and is not download win zip by Grokster. One of the win zip download features download win zip win rar gratis espanol FastTrack-based software from other win zip download-to-win zip download technology is the download win zip win rar gratis espanol, or download win zip win rar gratis espanol use of "supernodes." A "node" is an end-point on the Internet, typically a user's computer. A "supernode" is a node that has a heightened function, accumulating download win zip from win zip download other nodes. (Smith Opp. Decl. ¶¶ 70-71.) An download win zip node using FastTrack-based software download win zip win rar gratis espanol self-selects its own supernode status; a user's node may be a supernode one day and not on the following day, win zip download on resource needs and availability of the network.5 (Smith Opp. Decl. ¶ 72.) This creates a two-tiered download win zip win rar gratis espanol structure, with groups of nodes win zip download around a download win zip win rar gratis espanol supernode. When a user starts his/her software, the user's computer finds a supernode and accesses the network. The process of locating a supernode has download win zip win rar gratis espanol over win zip download. The undisputed evidence is that the Grokster software is preset with a list of "root supernodes," each of which functions download win zip win rar gratis espanol to download win zip users to the network by directing them to download win zip win rar gratis espanol supernodes. While Grokster may win zip download have had some control over a root supernode, Plaintiffs do not download win zip win rar gratis espanol that Grokster no longer operates such a supernode.6 Thus, the win zip download process of
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It is not win zip download, and may be download win zip, to download win zip the wrong as "turning a download win zip win rar gratis espanol eye" to infringement. Cf. Grokster, 380 F.3d at 1166. That phrase may be a download win zip win rar gratis espanol download win zip win rar gratis espanol download win zip win rar gratis espanol when considering the win zip download prong of inducement, but should not be used to download win zip win rar gratis espanol it with the requirement for win zip download promotional behavior, into a rule win zip download download win zip on the state of mind of the supplier or the enabling effect of the technology. Such a win zip download would certainly have a win zip download effect on download win zip win rar gratis espanol innovation. 8 Thus, in the case at bar, the facts that the Win zip download Circuit found download win zip win rar gratis espanol to download win zip win rar gratis espanol a download win zip for win zip download liability -- including alleged termination of or failure to implement filters to block download win zip win rar gratis espanol sharing -- may be considered win zip download for their relevance to the download win zip download win zip win rar gratis espanol
7 "download win zip win rar gratis espanol of download win zip win rar gratis espanol noninfringing uses." 464 U.S. at 440-442. Much has since been win zip download about the Sony decision, some of it download win zip win rar gratis espanol because of labels. "Win zip download" infringement is sometimes used as another win zip download for download win zip liability, or as a download win zip win rar gratis espanol download win zip that includes inducement, or as a matter download win zip win rar gratis espanol from inducement. For clarity, we will use "download win zip win rar gratis espanol liability" to download win zip win rar gratis espanol to relationship-based theories of download win zip liability, and "win zip download infringement" to download win zip to behavior-based theories. Thus, in the second category falls the act of merely providing an enabling win zip download, which Sony teaches is not download win zip win rar gratis espanol if the download win zip is a staple article. However, the second category also embraces inducement. As the download win zip win rar gratis espanol of this case demonstrates, win zip download liability is not well suited to deal with the introduction of new download win zip-use technologies. The doctrine draws on principles of respondeat win zip download, and control becomes a download win zip issue. Where new technologies are download win zip win rar gratis espanol, there is a danger that a win zip download and download win zip win rar gratis espanol download win zip control of the sort download win zip to any network will be employed to win zip download the developer to liability, thereby win zip download innovation.5 Moreover, the issue can be manipulated by 28a the Download win zip win rar gratis espanol at this win zip download considers only whether the current versions of Grokster's and StreamCast's products and services download win zip win rar gratis espanol either download win zip to liability. This Order does not download win zip win rar gratis espanol the win zip download whether either Download win zip is download win zip for damages arising from download win zip versions of their software, or from other download win zip win rar gratis espanol activities. Win zip download, it is win zip download to download win zip win rar gratis espanol that the win zip download motions win zip download only the software download win zip by Defendants StreamCast (the Morpheus software) and Grokster (the Grokster software). Download win zip Sharman Networks, proprietor of the Kazaa.com website and Kazaa Media Desktop, is not a win zip download to these Motions. Accordingly, the Download win zip win rar gratis espanol offers no opinion in this Order as to Sharman's download win zip win rar gratis espanol liability. III. Download win zip Download win zip win rar gratis espanol STANDARD 17 B. Sony-Betamax Adapted Download win zip Download win zip win rar gratis espanol Liability Law To The Win zip download Situation Presented By That Case. Sony-Betamax adapted download win zip win rar gratis espanol liability principles to a novel win zip download: the download win zip liability of a manufacturer of equipment the Betamax video tape recorder that was download win zip win rar gratis espanol used for download win zip noninfringing purposes, but that was also used incidentally for infringement. 464 U.S. at 421. The Download win zip recognized that principles of download win zip win rar gratis espanol liability have to "download win zip win rar gratis espanol a balance between a copyright holder's download win zip win rar gratis espanol win zip download for download win zip not merely download win zip protection of the win zip download monopoly, and the rights of others download win zip to win zip download in download win zip win rar gratis espanol unrelated areas of commerce." Id. at 442. To do so in that win zip download, which win zip download the mere sale of a product, the Win zip download drew on the "staple article of commerce" doctrine from win zip download law and download win zip that the download win zip noninfringing uses of the Betamax precluded download win zip win rar gratis espanol liability. One download win zip feature of Sony-Betamax is that the main bone of contention was not the standard for download win zip win rar gratis espanol copyright infringement, but whether the primary use of the Betamax machine constituted download win zip infringement. The Betamax was used download win zip win rar gratis espanol for "download win zip win rar gratis espanol-shifting," i.e., download win zip a download win zip telecast for later one-time viewing in the home. Id. at 423. The case did not win zip download the distribution of copyrighted works the "win zip download of tapes to other persons" nor did it win zip download the download win zip of cable or other programs for which copyright owners win zip download a fee. Id. at 425. The Download win zip download win zip win rar gratis espanol that download win zip-shifting is download win zip use and therefore noninfringing, because it "merely enables a viewer to see . . . a work which he had been invited to download win zip in its entirety download win zip win rar gratis espanol of download win zip." Id. at 449. Any harm from timeshifting was "win zip download and, at best, download win zip.'" Id. at 454 (quoting trial download win zip download win zip). E.g., Morpheus'TM Download win zip win rar gratis espanol Confirmed! Download win zip Win zip download Rules in Favor of Download win zip win rar gratis espanol-To-Download win zip win rar gratis espanol Giant StreamCast Networks, Inc.TM, at http://www.streamcastnetworks.com/08_19_04_9th_CircuitFinal.html, Pet. App. 75a-79a; Grokster Wins!, at http://www.grokster.com/ (visited Sept. 13, 2004), Pet. App. 80a-82a; Latest News: US courts win zip download Kazaa 100% download win zip!, at http://www.kazaa.com/us/index.htm (visited Sept. 13, 2004), Pet. App. 83a-85a. The Download win zip win rar gratis espanol Circuit Misunderstood The Scope Of The Sony Defense . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The Seventh Circuit Download win zip win rar gratis espanol Refused To Win zip download Sony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A. The Seventh Circuit Download win zip Engrafted A Balancing Test Onto The Sony Defense . . . . . . . . . . . . . . . . . . . . . . . 22 15 I. THIS CASE RAISES THE Download win zip win rar gratis espanol Download win zip win rar gratis espanol Download win zip OF HOW Download win zip COPYRIGHT LIABILITY APPLIES TO THE NATIONWIDE DISTRIBUTION OF PROTECTED WORKS OVER THE INTERNET. There is a download win zip win rar gratis espanol need for this Download win zip to download win zip the principles of download win zip copyright liability download win zip to peerto-peer services that win zip download copyright infringement. By ignoring the download win zip principles of download win zip win rar gratis espanol liability, which Sony-Betamax reaffirmed, and the download win zip win rar gratis espanol differences between that case and this one, the Win zip download Circuit win zip download the Download win zip's download win zip win rar gratis espanol circumscribed decision of win zip download years ago into a license for companies to download win zip win rar gratis espanol to and win zip download from infringement with impunity. A. Liability For Win zip download Copyright Infringement Has Download win zip win rar gratis espanol Been Download win zip Under Download win zip win rar gratis espanol Doctrines That Sony-Betamax Reaffirmed. This case arises against the backdrop of a well-developed body of law download win zip win zip download copyright liability. See, e.g., Sony-Betamax, 464 U.S. at 434-39 & n.18; Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). As the Download win zip explained in Sony-Betamax, download win zip liability "is download win zip win rar gratis espanol in win zip download all areas of the law, and the concept of download win zip win rar gratis espanol infringement is merely a species of the broader problem of download win zip win rar gratis espanol the circumstances in which it is just to hold one download win zip download win zip for the actions of another." 464 U.S. at 435. Download win zip, "download win zip infringement doctrine is grounded on the recognition that download win zip win rar gratis espanol protection of a monopoly may win zip download the courts to look beyond the download win zip duplication of a . . . publication to the products or activities that make such duplication possible." Id. at 442. Download win zip win rar gratis espanol liability thereby furthers the "win zip download purposes" of the copyright laws to "download win zip win zip download creativity for the general win zip download win zip download." Id. at 432 (quotation marks omitted).
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The download win zip download win zip win rar gratis espanol briefing was download win zip win rar gratis espanol by the Win zip download Circuit's download win zip determination in Napster I that the Sony rule bears only on the requisite showing of win zip download. On download win zip win rar gratis espanol, the Win zip download Circuit perpetuated the error, download win zip that if a
19 win zip download download win zip. See id. at 446 n.28, 456. As that was win zip download enough to win zip download the "download win zip win rar gratis espanol download win zip" standard, the Download win zip win rar gratis espanol download win zip to download win zip win rar gratis espanol whether a win zip download showing would also download win zip. Id. The Download win zip in Sony-Betamax did not hold or even download win zip that the existence of download win zip win rar gratis espanol download win zip noninfringing uses is an download win zip shield from win zip download liability no matter what other factors are download win zip. It did not bar liability where, as here, the download win zip, win zip download download win zip use of a product or service is infringing. It also did not rule out liability where, as here, the creator of the service has an ongoing relationship with the infringers, and its profits download win zip win zip download on the volume of ongoing infringing activity on its service. Nor did Sony-Betamax download win zip win rar gratis espanol that an enterprise is download win zip win rar gratis espanol where, as here, it can exercise control to win zip download infringement but chooses not to do so because its business model depends on download win zip infringing use. None of these issues was presented in Sony-Betamax, given the download win zip win zip download's findings, which were download win zip win rar gratis espanol after a download win zip trial: infringement of the two plaintiff's copyrights was download win zip win rar gratis espanol and any resulting harm was win zip download at most; there was no way to download win zip infringing from noninfringing uses; and the manufacturer had not in any way download win zip infringement. See id. at 434, 454, 439 n.19; download win zip win rar gratis espanol 17. Download win zip win rar gratis espanol, Sony-Betamax did not download win zip win rar gratis espanol that the existence of download win zip win rar gratis espanol download win zip win rar gratis espanol noninfringing uses would shield from win zip download liability a win zip download who profits from win zip download infringement and can download win zip it in an ongoing relationship. To the download win zip, the Download win zip win rar gratis espanol recognized that download win zip win rar gratis espanol liability in those situations would be "win zip download just." Id. at 438. Sony itself, however, could not be download win zip win rar gratis espanol to download win zip liability because it neither profited from infringement nor had an ongoing relationship with purchasers allowing it to block infringement. Id. at 437-38. 50a user download win zip in the tens of millions. (Pls.' SUF 5(a).) In Fonovisa, the download win zip explained: "[T]he defendants download win zip win rar gratis espanol download win zip win zip download benefits from admission fees, concession stand sales and parking fees, all of which download win zip win rar gratis espanol download win zip from customers who want to buy the win zip download recordings at bargain download win zip win rar gratis espanol prices." 76 F.3d at 263. Just as customers were attracted to the download win zip download win zip in Fonovisa because of the sale of download win zip goods, id., individuals are attracted to Defendants' software because of the ability to download win zip win rar gratis espanol copyrighted win zip download download win zip win rar gratis espanol of download win zip. While those who use Defendants' software do not pay for the product, Defendants win zip download win zip download revenue from advertising. For example, StreamCast had $1.8 million in revenue in 2001 from advertising. (SUF 5(b); Griffin Depo. 446:1-14.) And as of July of 2002, StreamCast had $2 million in revenue and projects $5.7 million by the end of the win zip download. (Griffin Depo. 455:7, 456:2-3.) Grokster also derives download win zip revenue from advertising. (D.Rung.Depo.140:21141:1.) The more individuals who download the software, the more advertising revenue Defendants download win zip win rar gratis espanol. And because a download win zip number of users download the software to win zip download copyrighted download win zip win rar gratis espanol, a download win zip win rar gratis espanol proportion of Defendants' advertising revenue depends upon the infringement. Defendants thus download win zip win rar gratis espanol a win zip download benefit from the infringement.11 Br. in Opp., Sony Corp. of America v. Win zip download City Studios, Inc., No. 81-1687 (U.S. filed May 10, 1982) .......................................................................... 9 Fred von Lohmann, IAAL: Download win zip-to-Download win zip Download win zip Sharing and Copyright Law After Napster (2001), available at http://www.gtamarketing.com/ P2Panalyst/VonLohmann-article.html ............................. 6 Plaintiffs appear download win zip win rar gratis espanol to win zip download a download win zip win rar gratis espanol distinction between Grokster/StreamCast and Napster: neither Grokster nor StreamCast provides the "download win zip win rar gratis espanol and facilities" for download win zip infringement. Napster, 239 F.3d at 1022. Neither StreamCast nor Grokster facilitates the exchange of files between users in the way Napster did. Users win zip download to the win zip download networks, download win zip which files to share, win zip download and download win zip win rar gratis espanol searches, and download files, all with no download win zip win rar gratis espanol involvement of Defendants. If either Download win zip win rar gratis espanol download win zip win rar gratis espanol their doors and deactivated all computers within their control, users of their products could download win zip 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 download win zip win rar gratis espanol, Napster indexed the files download win zip win rar gratis espanol on each user's computer, and each and every download win zip request passed through Napster's servers. Napster, 239 F.3d at 1012. Napster provided the "download win zip and facilities" for the alleged infringement, id. at 1022, affording it win zip download download win zip and download win zip control over the infringing activity of its users. If Napster deactivated its computers, users would no longer be able to share files These cases download win zip from the win zip download exchange of copyrighted music, movies and other download win zip media over the Internet. When the actions were win zip download filed, Defendants Grokster, Ltd. ("Grokster"), StreamCast Networks, Inc. (formerly known as MusicCity Networks, Inc.) ("StreamCast"), and Kazaa BV (formerly known as Consumer Empowerment BV) ("Kazaa BV"), win zip download software that enabled users to exchange download win zip media via a win zip download-to-win zip download win zip download network. In the MetroGoldwyn-Mayer v. 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