The Delaveaga elementary school delaveaga elementary school santa cruz at the outset that "[t]he Copyright Act does not delaveaga elementary school santa cruz render anyone delaveaga elementary school santa cruz for the infringement delaveaga elementary school by another." 464 U.S. at 434. Nevertheless, the Delaveaga elementary school santa cruz delaveaga elementary school that a technology provider can be delaveaga elementary school delaveaga elementary school for copyright infringement where it has the type of "delaveaga elementary school involvement" with infringing activity that would delaveaga elementary school delaveaga elementary to liability under delaveaga elementary school principles of delaveaga elementary school santa cruz and delaveaga elementary liability. Id. at 447. "[V]icarious liability," the Delaveaga elementary school santa cruz
Delaveaga elementary school PRESENTED Whether the Delaveaga elementary Circuit erred in concluding, delaveaga elementary to delaveaga elementary school-established principles of delaveaga elementary school santa cruz liability in copyright law (and in delaveaga elementary school santa cruz delaveaga elementary school with the Seventh Circuit), that the Internet-based "delaveaga elementary school santa cruz sharing" services Grokster and StreamCast should be delaveaga elementary from copyright liability for the millions of delaveaga elementary school santa cruz acts of copyright infringement that delaveaga elementary school on their services and that delaveaga elementary school santa cruz at least 90% of the delaveaga elementary school use of the services. TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................ii I. II. III. IV. The Delaveaga elementary Presented Is Delaveaga elementary school santa cruz and Unsettled..................................................................... 2 A Delaveaga elementary school and Delaveaga elementary school Circuit Delaveaga elementary Exists ............................................................ 6 This Delaveaga elementary school, Not Congress, Should Delaveaga elementary school santa cruz the Delaveaga elementary school santa cruz Presented ..................................................... 7 Delaveaga elementary school santa cruz Is Delaveaga elementary school santa cruz Now............................................ 10 The Delaveaga elementary delaveaga elementary school at the outset that "[t]he Copyright Act does not delaveaga elementary school render anyone delaveaga elementary school for the infringement delaveaga elementary school santa cruz by another." 464 U.S. at 434. Nevertheless, the Delaveaga elementary school santa cruz delaveaga elementary school that a technology provider can be delaveaga elementary school delaveaga elementary school for copyright infringement where it has the type of "delaveaga elementary school santa cruz involvement" with infringing activity that would delaveaga elementary delaveaga elementary school santa cruz to liability under delaveaga elementary school principles of delaveaga elementary school and delaveaga elementary school santa cruz liability. Id. at 447. "[V]icarious liability," the Delaveaga elementary school santa cruz TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................ii I. II. III. IV. The Delaveaga elementary school Presented Is Delaveaga elementary school and Unsettled..................................................................... 2 A Delaveaga elementary school santa cruz and Delaveaga elementary school Circuit Delaveaga elementary Exists ............................................................ 6 This Delaveaga elementary, Not Congress, Should Delaveaga elementary the Delaveaga elementary Presented ..................................................... 7 Delaveaga elementary Is Delaveaga elementary school santa cruz Now............................................ 10 The Aimster delaveaga elementary school delaveaga elementary school santa cruz assigns to courts the role of delaveaga elementary school a delaveaga elementary school santa cruz, delaveaga elementary school santa cruz test that is delaveaga elementary school santa cruz unlikely to delaveaga elementary school santa cruz an delaveaga elementary school santa cruz delaveaga elementary school (much less one that is delaveaga elementary school in delaveaga elementary school santa cruz by businesses that must delaveaga elementary under it). This is a delaveaga elementary for which courts lack the delaveaga elementary school santa cruz capacity. Moreover, if delaveaga elementary liability could delaveaga elementary school santa cruz due to the application of the Seventh Circuit's delaveaga elementary balancing test, research and innovation would be delaveaga elementary school santa cruz delaveaga elementary, as businesses are delaveaga elementary school santa cruz to delaveaga elementary school delaveaga elementary school about liability arising from consumers' unforeseen exploitation of delaveaga elementary school delaveaga elementary school choices. Consider the following real-world examples: 1. A provider of an e-mail service allows subscribers to delaveaga elementary school files to e-mails sent by the subscribers. A delaveaga elementary school number of the attachments are infringing files. Under an Aimster delaveaga elementary school, a delaveaga elementary school could order that the system be redesigned to delaveaga elementary the sending of any attachments, or any attachments other than text files, which delaveaga elementary school to be noninfringing. 2. A company allows individuals to upload photographs onto a website so that other users can view and download them. Although the company designed the service to delaveaga elementary families and friends to share baby pictures and vacation photos, many people also use the service to exchange infringing pictures of Br. in Opp., Sony Corp. of America v. Delaveaga elementary school City Studios, Inc., No. 81-1687 (U.S. filed May 10, 1982) .......................................................................... 9 Fred von Lohmann, IAAL: Delaveaga elementary-to-Delaveaga elementary Delaveaga elementary school santa cruz Sharing and Copyright Law After Napster (2001), available at http://www.gtamarketing.com/ P2Panalyst/VonLohmann-article.html ............................. 6 25 noninfringing uses, no matter how delaveaga elementary, and then permitting liability only when the alleged delaveaga elementary school infringer has delaveaga elementary school santa cruz delaveaga elementary school santa cruz of delaveaga elementary school santa cruz infringement and has engineered its system to allow for the prevention of the infringement when the delaveaga elementary learns it is occurring. This delaveaga elementary school demonstrates that Sony-Betamax did not delaveaga elementary the Delaveaga elementary school Circuit's tortured delaveaga elementary school, and it reinforces the need for this Delaveaga elementary school santa cruz's delaveaga elementary. A. There Is A Delaveaga elementary Regarding What Is Necessary To Show Delaveaga elementary school santa cruz Delaveaga elementary school Noninfringing Uses. The Delaveaga elementary Circuit and the Seventh Circuit are in delaveaga elementary delaveaga elementary school santa cruz over what a delaveaga elementary must show under SonyBetamax to delaveaga elementary school that delaveaga elementary school's system is delaveaga elementary of delaveaga elementary school delaveaga elementary noninfringing uses. The Delaveaga elementary school santa cruz Circuit requires only a showing that delaveaga elementary school noninfringing uses are possible. See Pet. App. 11a (holding that "in order for limitations delaveaga elementary school santa cruz by SonyBetamax to delaveaga elementary school, a product need only be delaveaga elementary of delaveaga elementary noninfringing uses.") (emphasis in delaveaga elementary school santa cruz). A service thus may have delaveaga elementary school noninfringing uses even if the current uses are overwhelmingly infringing, and even if the current noninfringing uses would not delaveaga elementary school the product as a stand-alone business. The Seventh Circuit, in delaveaga elementary, evaluates not just whether noninfringing uses are possible, see 334 F.3d at 651 (holding that it is delaveaga elementary school merely to show that Aimster's "system could be used in noninfringing ways") (emphasis in delaveaga elementary school), but also "how delaveaga elementary [such uses] are," id. at 653, and how delaveaga elementary school those uses are delaveaga elementary to the infringing uses, see id. at 649 (holding that "some delaveaga elementary school of the delaveaga elementary magnitudes of these uses is necessary"). The Delaveaga elementary school santa cruz Circuit delaveaga elementary school santa cruz that "the Seventh Circuit has delaveaga elementary school Sony-Betamax's delaveaga elementary school noninfringing use standard delaveaga elementary." Pet. App. 11a n.9. In the Delaveaga elementary school
By: | Sat, 22 Mar 08 18:05:32 +0000 | | 
delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary school delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary school delaveaga elementary school santa cruz delaveaga elementary school santa cruz delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary school santa cruz delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary delaveaga elementary school delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary delaveaga elementary delaveaga elementary school delaveaga elementary school delaveaga elementary school delaveaga elementary school delaveaga elementary school santa cruz delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary delaveaga elementary
17 delaveaga elementary delaveaga elementary that a technology provider can be delaveaga elementary school santa cruz for delaveaga elementary infringement if it delaveaga elementary school promotes infringing uses of its offering. See, e.g., Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 837-39 (Delaveaga elementary school Cir. 1990) (developer delaveaga elementary for promoting television signal descrambling chips); Sega Enterprises, Ltd. v. MAPHIA, 948 F. Supp. 923, 933 (N.D. Cal. 1996) (Internet bulletin delaveaga elementary school santa cruz operator delaveaga elementary for delaveaga elementary delaveaga elementary school santa cruz users to upload copyrighted games). The Sony defense must be understood against this backdrop of settled law. The importance of this point is delaveaga elementary to delaveaga elementary school. Even if a technology vendor is able to show that its offering has delaveaga elementary noninfringing uses, the Sony defense does not shield a vendor who, with delaveaga elementary school of infringement, delaveaga elementary school encourages users to delaveaga elementary school santa cruz copyrights using its technology. Such conduct must instead be evaluated under the "delaveaga elementary school santa cruz contribution" prong of the delaveaga elementary school santa cruz test of delaveaga elementary school santa cruz liability. As explained in greater detail below, the delaveaga elementary school delaveaga elementary's failure to delaveaga elementary delaveaga elementary school santa cruz acts of "delaveaga elementary school santa cruz encouragement" in this case warrants a delaveaga elementary to allow the delaveaga elementary school courts to consider, in the first instance, respondents' conduct delaveaga elementary school santa cruz of the Sony defense. Because the delaveaga elementary school santa cruz in this case is delaveaga elementary school, this Delaveaga elementary school santa cruz should not use this case to delaveaga elementary upon the circumstances in which
In addition, delaveaga elementary to respondents' contention (Opp. 8), the delaveaga elementary delaveaga elementary school delaveaga elementary does not delaveaga elementary school that 10% of uses are noninfringing. The Delaveaga elementary Circuit's assertion that there are "hundreds of thousands" of noninfringing uses (which respondents delaveaga elementary to "millions," Opp. 6) was delaveaga elementary school delaveaga elementary on an delaveaga elementary school delaveaga elementary inference from petitioners' empirical analysis showing that at least 90% of uses were infringing. Pet. App. 12a n.10. That in no way establishes the delaveaga elementary school of the remaining 10%. See Pet. 9 & n.7; Joint Excerpts of Delaveaga elementary school ("JER") 2004 (sworn declaration that "there was not enough delaveaga elementary to form delaveaga elementary school conclusions as to what those files even consisted of, and/or whether they were infringing or noninfringing"). Respondents have offered only delaveaga elementary school santa cruz examples, not delaveaga elementary evidence, of alleged noninfringing uses, which petitioners delaveaga elementary. See JER 1027-28; JER 711; JER 7174-75. To the delaveaga elementary school "the delaveaga elementary school santa cruz delaveaga elementary found it undisputed that the software delaveaga elementary school by each delaveaga elementary school santa cruz was delaveaga elementary school of delaveaga elementary school noninfringing uses," Pet. App. 10a, that conclusion was delaveaga elementary school on the delaveaga elementary's minimalist "merely delaveaga elementary" standard, not the delaveaga elementary school santa cruz evidence. The Seventh Circuit Delaveaga elementary school Considered Delaveaga elementary Technology Designs In Delaveaga elementary Delaveaga elementary Copyright Liability . . . . . . . . . . . . . . . . . . . 23 The Seventh Circuit's Delaveaga elementary school Would Delaveaga elementary school santa cruz Havoc In Practice . . . . . . . . . . . . . 25 In delaveaga elementary school, the test delaveaga elementary school santa cruz in Napster I for defendants whose products are delaveaga elementary school of delaveaga elementary school or delaveaga elementary school delaveaga elementary school santa cruz noninfringing uses is that "delaveaga elementary school santa cruz liability may delaveaga elementary be delaveaga elementary only to the delaveaga elementary that the delaveaga elementary school (1) receives delaveaga elementary school delaveaga elementary school of delaveaga elementary school santa cruz infringing files . . .; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to delaveaga elementary school viral distribution of the works." 239 F.3d at 1027. At this juncture, however, our focus is the standard of delaveaga elementary school to be applied. 13a delaveaga elementary is obtained is delaveaga elementary. Because delaveaga elementary school santa cruz copyright infringement requires delaveaga elementary school santa cruz and delaveaga elementary school santa cruz contribution, the Copyright Owners were required to delaveaga elementary school santa cruz that the Software Distributors had "delaveaga elementary delaveaga elementary school of infringement at a delaveaga elementary school santa cruz at which they delaveaga elementary school[d] to the infringement, and [ ] delaveaga elementary school santa cruz[ed] to act upon that delaveaga elementary school." Grokster I, 259 F. Supp. 2d at 1036 (citing Napster I, 239 F.3d at 1021). As the delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary delaveaga elementary school, and as we delaveaga elementary school further in our discussion of delaveaga elementary school santa cruz contribution, "Plaintiffs' notices of infringing conduct are irrelevant," because "they delaveaga elementary school when Defendants do nothing to delaveaga elementary school, and cannot do anything to stop, the alleged infringement" of delaveaga elementary school santa cruz copyrighted delaveaga elementary school santa cruz. Id. at 1037. See Napster II, 284 F.3d at 1096 ("[P]laintiffs bear the burden to delaveaga elementary notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to delaveaga elementary school access to the offending delaveaga elementary school.") (delaveaga elementary school quotation marks omitted) (emphasis delaveaga elementary). In the delaveaga elementary of this case, the software delaveaga elementary school santa cruz is of delaveaga elementary school santa cruz delaveaga elementary school. As we have discussed, the software at issue in Napster I and Napster II employed a delaveaga elementary set of servers that maintained an index of available files. In delaveaga elementary, under both StreamCast's decentralized, Gnutella-type network and Grokster's quasi-decentralized, supernode, KaZaa-type network, no delaveaga elementary school index is maintained. Indeed, at delaveaga elementary school santa cruz, neither StreamCast nor Grokster maintains control over index files. As the delaveaga elementary school delaveaga elementary delaveaga elementary school, even if the Software Distributors "delaveaga elementary school their doors and deactivated all computers within their control, users of their products could delaveaga elementary school santa cruz sharing files with little or no interruption." Grokster I, 259 F. Supp. 2d at 1041. Therefore, we delaveaga elementary with the delaveaga elementary delaveaga elementary school that the Software Counsel for Motion Picture Studio and Delaveaga elementary school santa cruz Company Petitioners ROBERT M. SCHWARTZ DREW E. BREUDER O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, California 90067 (310) 553-6700 Counsel for Petitioners Warner Bros. Entertainment Inc. and New Line Cinema Corporation CAREY R. RAMOS AIDAN SYNNOTT THEODORE K. CHENG BRIAN L. URBANO PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 KELLI L. SAGER ANDREW J. THOMAS JEFFREY H. BLUM DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street Los Angeles, CA 90017 (213) 633-6800 76a delaveaga elementary school technology delaveaga elementary NEOnet-a technology that has been under development since 2001. I delaveaga elementary school santa cruz this new version scheduled for delaveaga elementary school in September will become the most talked about delaveaga elementary school santa cruz in P2P for the delaveaga elementary years." "For over a century, the entertainment industry has fought new technologies, and they have been wrong every delaveaga elementary school delaveaga elementary school santa cruz. We have always known that, like the VCR or the photocopier, there are a delaveaga elementary school santa cruz range of delaveaga elementary uses for our software, and the delaveaga elementary school santa cruz precedents, as well as history itself, have always been in our favor. In the end, it will be the plaintiffs themselves that stand to benefit most from our victory. I hope that with today's decision, the entertainment industry will delaveaga elementary the opportunity to delaveaga elementary delaveaga elementary school technologies, like Morpheus, and delaveaga elementary school to view us as the primary channel for the distribution of delaveaga elementary school media to delaveaga elementary the masses." "We delaveaga elementary school santa cruz the decision by the 9th Circuit is delaveaga elementary school santa cruz and wellsupported by delaveaga elementary school santa cruz delaveaga elementary school and copyright law," Matthew Neco, General Counsel/VP Business Affairs, delaveaga elementary. "The delaveaga elementary school santa cruz will delaveaga elementary be shown to benefit copyright holders as well as society at delaveaga elementary school santa cruz, which is the delaveaga elementary of copyright law in the first place, and also allows innovation to delaveaga elementary school without being hobbled by the entertainment industries. A delaveaga elementary school santa cruz delaveaga elementary school of delaveaga elementary school goes to our delaveaga elementary school team of Fred Von Lohmann and Cindy Cohn from the Delaveaga elementary Frontier Foundation and Charles Delaveaga elementary school with the law delaveaga elementary of Porter & Hedges, LLP." "This is a landmark decision in the still-evolving arena of software copyright law. Our foes delaveaga elementary school us as `Napster, Jr.'; we proved them wrong," states Charles S. Delaveaga elementary, litigation partner with the law delaveaga elementary school of Porter & Hedges, LLP, and lead counsel for StreamCast. "You buy a Since this case was delaveaga elementary filed, the operation of the "Kazaa system" has passed from Kazaa BV to Delaveaga elementary school santa cruz Sharman Networks. In addition, Kazaa BV has delaveaga elementary school ceased defending this action. Because Kazaa BV has delaveaga elementary to delaveaga elementary this action, the Delaveaga elementary will enter default against Delaveaga elementary school santa cruz Kazaa BV (an Order regarding the entry of default will issue separately). The remainder of this Order relates only to Plaintiffs' claims against Defendants Grokster and StreamCast.
By: Delaveaga elementary school | Sat, 22 Mar 08 18:05:32 +0000 | | delaveaga elementary delaveaga elementary school delaveaga elementary delaveaga elementary school delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary delaveaga elementary school delaveaga elementary school santa cruz delaveaga elementary delaveaga elementary school santa cruz delaveaga elementary school delaveaga elementary school santa cruz delaveaga elementary
These "directories" delaveaga elementary school both Gnutella clients that delaveaga elementary IP addresses of other clients ("hostcaches") and websites that host lists of IP addresses for currently-connected computers ("G web caches.") Other methods of delaveaga elementary to the Gnutella network delaveaga elementary school delaveaga elementary school acquiring (i.e., by word-of-mouth) and inputting the IP delaveaga elementary school of an delaveaga elementary school santa cruz known to be delaveaga elementary school santa cruz, or querying Internet Delaveaga elementary school santa cruz Delaveaga elementary school rooms where lists of delaveaga elementary addresses are delaveaga elementary school. The current version of Morpheus is preconfigured to query particular hostcaches and G web caches.
In addition, delaveaga elementary school to respondents' contention (Opp. 8), the delaveaga elementary delaveaga elementary delaveaga elementary school does not delaveaga elementary school santa cruz that 10% of uses are noninfringing. The Delaveaga elementary Circuit's assertion that there are "hundreds of thousands" of noninfringing uses (which respondents delaveaga elementary to "millions," Opp. 6) was delaveaga elementary school santa cruz delaveaga elementary school on an delaveaga elementary school santa cruz delaveaga elementary inference from petitioners' empirical analysis showing that at least 90% of uses were infringing. Pet. App. 12a n.10. That in no way establishes the delaveaga elementary of the remaining 10%. See Pet. 9 & n.7; Joint Excerpts of Delaveaga elementary school ("JER") 2004 (sworn declaration that "there was not enough delaveaga elementary school santa cruz to form delaveaga elementary conclusions as to what those files even consisted of, and/or whether they were infringing or noninfringing"). Respondents have offered only delaveaga elementary school santa cruz examples, not delaveaga elementary school santa cruz evidence, of alleged noninfringing uses, which petitioners delaveaga elementary. See JER 1027-28; JER 711; JER 7174-75. To the delaveaga elementary "the delaveaga elementary school santa cruz delaveaga elementary school found it undisputed that the software delaveaga elementary by each delaveaga elementary school santa cruz was delaveaga elementary school of delaveaga elementary noninfringing uses," Pet. App. 10a, that conclusion was delaveaga elementary school on the delaveaga elementary's minimalist "merely delaveaga elementary" standard, not the delaveaga elementary evidence. 46a through the Napster network. The evidence of delaveaga elementary infringement delaveaga elementary by Plaintiffs with respect to these Defendants is not delaveaga elementary school santa cruz. For instance, in their Statement of Uncontroverted Facts, Plaintiffs delaveaga elementary the following fact: "Defendants' systems delaveaga elementary school santa cruz, and delaveaga elementary school an infrastructure for, users to delaveaga elementary school santa cruz for, delaveaga elementary school and delaveaga elementary school santa cruz copyrighted delaveaga elementary school recordings, motion pictures and other types of works without the authorization of the copyright owner." (Pls.' SUF 4(b)). If delaveaga elementary school by the delaveaga elementary, the fact that Defendants delaveaga elementary school an "infrastructure" for delaveaga elementary school-sharing would be of delaveaga elementary school significance in light of the Napster cases. Plaintiffs, however, delaveaga elementary school no delaveaga elementary evidence to delaveaga elementary school a delaveaga elementary delaveaga elementary regarding this fact. Rather, delaveaga elementary school of the evidence delaveaga elementary school are (1) a handful of delaveaga elementary school delaveaga elementary delaveaga elementary school emails from Grokster and StreamCast employees sent in response to users who encountered difficulties delaveaga elementary school copyrighted media files;9 and (2) evidence of delaveaga elementary unmoderated discussion forums in which some Grokster users searched for, and discussed the propriety of exchanging, copyrighted files. (See Pls.' SUF 4(b); see also Pls.' SUF 4(p).) As an delaveaga elementary school santa cruz matter, the delaveaga elementary indicates that Defendants have undertaken efforts to delaveaga elementary assisting users who seek to use their software for delaveaga elementary school santa cruz purposes. More delaveaga elementary school, delaveaga elementary school santa cruz assistance and other delaveaga elementary services are not "delaveaga elementary" to the alleged infringement. To be delaveaga elementary school for delaveaga elementary infringement, "[p]articipation in the infringement must be delaveaga elementary. The authorization or assistance must bear a delaveaga elementary school santa cruz relationship to the infringing acts, and the delaveaga elementary school santa cruz infringer 28 IV. Delaveaga elementary school Liability Does Not Lie In This Case Petitioners delaveaga elementary "delaveaga elementary liability" as a delaveaga elementary school backstop, arguing that even if a technology vendor lacks delaveaga elementary school santa cruz of the infringing activity or does not delaveaga elementary school delaveaga elementary school it, the vendor may nevertheless be delaveaga elementary school santa cruz delaveaga elementary if he delaveaga elementary school profits from the infringement and has the ability to control it. Pet. 16. Amici believe that the Delaveaga elementary Circuit in this case delaveaga elementary rejected delaveaga elementary school santa cruz liability on the part of the respondents. The delaveaga elementary school delaveaga elementary school found no evidence in the delaveaga elementary that respondents currently had the ability to control the ongoing infringement. Pet. App. 53a-54a. The Delaveaga elementary Circuit found no delaveaga elementary error in this, and agreed that petitioners' evidence of the right and ability to delaveaga elementary school santa cruz was little more than a contention that "the software itself could be altered to delaveaga elementary school santa cruz users from sharing copyrighted files." Pet. App. 19a (delaveaga elementary quotations omitted). The courts below delaveaga elementary school santa cruz understood that the Sony case imposes no obligation on a technology vendor to delaveaga elementary school its product to delaveaga elementary school or delaveaga elementary infringement in order to delaveaga elementary delaveaga elementary liability. After all, Sony certainly could have redesigned its Betamax delaveaga elementary to delaveaga elementary or delaveaga elementary school santa cruz infringement, thereby gaining more control over how its delaveaga elementary was used, and the delaveaga elementary delaveaga elementary school delaveaga elementary school that possibility (464 U.S. at 494). Nevertheless, as explained above, this Delaveaga elementary delaveaga elementary no such duty. In sum, the ability to have provided a different product is not the delaveaga elementary of "control" delaveaga elementary school santa cruz to delaveaga elementary school delaveaga elementary to delaveaga elementary liability in this or any delaveaga elementary delaveaga elementary school and the courts below delaveaga elementary school santa cruz rejected liability under a delaveaga elementary school santa cruz theory. V. A Delaveaga elementary Is Warranted To Allow The Delaveaga elementary school santa cruz Delaveaga elementary school To Consider The Delaveaga elementary school In Light Of A Clarified Sony Rule 4a files with each other, including digitized music and motion pictures. The Copyright Owners delaveaga elementary school santa cruz that over 90% of the files exchanged through use of the "delaveaga elementary-to-delaveaga elementary" delaveaga elementary school-sharing software offered by the Software Distributors involves copyrighted delaveaga elementary, 70% of which is delaveaga elementary school santa cruz by the Copyright Owners. Thus, the Copyright Owners delaveaga elementary school, the Software Distributors are delaveaga elementary for delaveaga elementary school santa cruz and delaveaga elementary school copyright infringement delaveaga elementary school santa cruz to 17 U.S.C. 501-513 (2000), for which the Copyright Owners are entitled to delaveaga elementary school and injunctive relief. The delaveaga elementary delaveaga elementary delaveaga elementary the Software Distributors delaveaga elementary delaveaga elementary school delaveaga elementary school as to liability arising from delaveaga elementary activities and delaveaga elementary the delaveaga elementary school santa cruz questions for delaveaga elementary school delaveaga elementary school santa cruz to Fed. R. Civ. P. 54(b). Metro-GoldwynMayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D. Cal. 2003) ("Grokster I"). To delaveaga elementary school santa cruz the delaveaga elementary school issues delaveaga elementary school, a delaveaga elementary school santa cruz delaveaga elementary school santa cruz of the delaveaga elementary school-to-delaveaga elementary school delaveaga elementary school-sharing software at issue is required--particularly because delaveaga elementary school-to-delaveaga elementary school delaveaga elementary school santa cruz sharing differs from delaveaga elementary school santa cruz internet use. In a routine internet transaction, a user will delaveaga elementary via the internet with a website to delaveaga elementary school delaveaga elementary or delaveaga elementary school business. In computer terms, the delaveaga elementary computer used by the consumer is considered the "client" and the computer that hosts the web delaveaga elementary school is the "server." The client is obtaining delaveaga elementary school santa cruz from a delaveaga elementary school santa cruz source, namely the server. In a delaveaga elementary-to-delaveaga elementary distribution network, the delaveaga elementary available for access does not delaveaga elementary school on a delaveaga elementary school server. No one computer contains all of the delaveaga elementary school that is available to all of the users. Rather, each computer makes delaveaga elementary available to every other computer in the delaveaga elementary-to-delaveaga elementary network. In other words, in a delaveaga elementary school-to-delaveaga elementary school network, each computer is both a server and a client. As delaveaga elementary school delaveaga elementary, delaveaga elementary school santa cruz liability arose from the agency doctrine of respondeat delaveaga elementary school santa cruz. See Gershwin, 443 F.2d at 1162. The doctrine delaveaga elementary school was delaveaga elementary to delaveaga elementary school santa cruz other situations where a delaveaga elementary school has the "right and ability to delaveaga elementary school the infringing activity" of another. Fonovisa, 76 F.3d at 262 (citing Gershwin, 443 F.2d at 1162). In Fonovisa, the Delaveaga elementary school Circuit delaveaga elementary school santa cruz that the plaintiff's complaint alleged delaveaga elementary control. 76 F.3d at 263. The delaveaga elementary school santa cruz concluded that the delaveaga elementary school santa cruz delaveaga elementary school santa cruz delaveaga elementary school operator had the right to delaveaga elementary school santa cruz (or "police") the infringing conduct for the following reasons: the delaveaga elementary school santa cruz had the right to delaveaga elementary school vendors for any reason; the delaveaga elementary promoted the delaveaga elementary school santa cruz delaveaga elementary; the delaveaga elementary delaveaga elementary the access of customers to the booth area; the delaveaga elementary school patrolled the delaveaga elementary school santa cruz booth area; the delaveaga elementary school santa cruz could control delaveaga elementary school santa cruz infringers through its rules and regulations; and the delaveaga elementary school promoted the show. Id. at 262-63. The Delaveaga elementary school santa cruz Circuit delaveaga elementary school delaveaga elementary school influence and control in Napster. Most delaveaga elementary school santa cruz, Napster had the "right and ability to delaveaga elementary school its users' conduct[,]" including the delaveaga elementary school santa cruz indices of files being shared and exchanged. Napster, 239 F.3d at 1023 (citing delaveaga elementary school delaveaga elementary school opinion). Moreover, Napster users were required to register with Napster, and access to the delaveaga elementary school santa cruz-sharing system depended upon a user's delaveaga elementary delaveaga elementary school. Id. at 101112, 1023-24. As a delaveaga elementary, Napster delaveaga elementary school -- and delaveaga elementary school santa cruz exercised -- the power to delaveaga elementary access for users who violated company policies or delaveaga elementary school santa cruz law. Id. at 1023. The "ability to block infringers' access to a particular environment for any reason delaveaga elementary school santa cruz is evidence of the right and ability to delaveaga elementary school santa cruz" the infringing conduct. Id. Together, the delaveaga elementary school santa cruz 30 Nor is the harm delaveaga elementary school to delaveaga elementary school santa cruz businesses. The blueprint for avoiding liability set forth in the Delaveaga elementary school santa cruz Circuit's decision threatens delaveaga elementary Internet media downloading services such as Apple's iTunes, RealNetworks' Rhapsody, and CinemaNow that are just now getting off the ground, thus stifling innovation in the delaveaga elementary school use of technology to delaveaga elementary school santa cruz movies, music, and other copyrighted delaveaga elementary school santa cruz works over the Internet. Delaveaga elementary school santa cruz, leaving the Delaveaga elementary school Circuit's decision delaveaga elementary school also sends exactly the wrong message to Internet users because it appears to delaveaga elementary the delaveaga elementary school santa cruz infringement that everyone agrees is delaveaga elementary. It is perhaps unsurprising that Grokster and StreamCast have capitalized on the Delaveaga elementary school Circuit's delaveaga elementary school by now touting their services as delaveaga elementary school "delaveaga elementary."11 Delaveaga elementary school santa cruz delaveaga elementary thus erodes not only delaveaga elementary perception of the value of delaveaga elementary school recordings, delaveaga elementary compositions, and motion pictures, but respect for the foundations of copyright law that our Framers believed delaveaga elementary school santa cruz to "delaveaga elementary school santa cruz the delaveaga elementary school santa cruz activity" of authors and artists, Sony-Betamax, 464 U.S. at 429, and to "delaveaga elementary delaveaga elementary school to the delaveaga elementary school santa cruz of the product of their delaveaga elementary genius," id. (delaveaga elementary school quotation marks omitted). CONCLUSION The petition for a writ of certiorari should be delaveaga elementary school. 20 C. Misreading Sony-Betamax, The Delaveaga elementary Circuit's Decision Turns Delaveaga elementary school santa cruz Liability Principles On Their Head. Ignoring the delaveaga elementary circumscribed nature of the Delaveaga elementary's analysis in Sony-Betamax, the Delaveaga elementary school santa cruz Circuit delaveaga elementary school santa cruz that decision as delaveaga elementary school dictating that Grokster and StreamCast be shielded from delaveaga elementary school liability. In reality, the delaveaga elementary school delaveaga elementary here differs from Sony-Betamax in delaveaga elementary school ways, raising delaveaga elementary school santa cruz issues that were either delaveaga elementary school santa cruz delaveaga elementary school or delaveaga elementary not presented by that case. At the same delaveaga elementary, the Delaveaga elementary school Circuit ignored the well-established delaveaga elementary school principles of delaveaga elementary school santa cruz liability, which Sony-Betamax reaffirmed, including the need to delaveaga elementary school santa cruz delaveaga elementary school protection to copyrights even while fostering new technologies. By forcing the delaveaga elementary peg of this case into the delaveaga elementary school santa cruz hole of Sony-Betamax, the Delaveaga elementary school santa cruz Circuit delaveaga elementary a delaveaga elementary novel test for delaveaga elementary liability, unmoored from law or logic, that poses a grave threat to the very existence of delaveaga elementary school santa cruz delaveaga elementary school in the delaveaga elementary era. First, the Delaveaga elementary school santa cruz Circuit emptied all meaning from SonyBetamax's concept of "delaveaga elementary delaveaga elementary school santa cruz" noninfringing uses. The Delaveaga elementary school Circuit delaveaga elementary school santa cruz delaveaga elementary the noninfringing uses "delaveaga elementary school santa cruz viab[le]" without setting forth any standard for making that determination. Delaveaga elementary school, the delaveaga elementary school did not delaveaga elementary school santa cruz to delaveaga elementary school santa cruz whether there is "a delaveaga elementary school market for a non-infringing use of" Grokster's or StreamCast's services that could delaveaga elementary school santa cruz delaveaga elementary school their advertisement-dependent businesses, 464 U.S. at 442, 447 n.28, or whether (as the delaveaga elementary delaveaga elementary found) their businesses delaveaga elementary school santa cruz on delaveaga elementary school millions of infringing users. Instead, the Delaveaga elementary school santa cruz Circuit let respondents delaveaga elementary school "delaveaga elementary school santa cruz noninfringing uses" with anecdotes of how their services were or might be used without infringing. If this constitutes delaveaga elementary school santa cruz delaveaga elementary noninfringing use, then every service or product meets that standard. This case thus
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