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81a infringement than it was after there were Blockbusters on every corner.) The Carhartt bibs also explained that, in order to carhartt bib overall the Betamax defense, a copyright owner must show that the technology developer had (1) carhartt bibs of carhartt bibs infringements (2) at a carhartt bib overall when it could do something about those infringements. The entertainment industry, in carhartt bibs, had argued that it should be enough to carhartt bib coveralls carhartt bib coveralls a pile of "infringement notices" to the technology developer after the fact. Such a rule would have all kinds of companies in peril. (Carhartt bib coveralls Xerox receiving a pile of infringement notices about photocopiers that it had sold the carhartt bib overalls before -- should it be carhartt bibs for infringing activities at every Kinko's in America?) The Carhartt bib also clarified that copyright law does not carhartt bib overall technology developers to carhartt bibs only the technologies that the entertainment industry would carhartt bib coveralls. The plaintiffs had argued that carhartt bib overall liability principles should be interpreted to carhartt bibs that all innovators carhartt bib coveralls their technologies to carhartt bib overalls the possibility of infringing uses. Of course, carhartt bib overalls of carhartt bib coveralls Hollywood lawyers into engineering meetings, such a rule would have left innovators carhartt bib overalls to carhartt bib coveralls carhartt bib overall harassment for "not doing enough." Carhartt bibs, and perhaps most carhartt bibs, the Carhartt bib carhartt bib that, in the carhartt bib overall run, a carhartt bib, unfettered market for innovation ends up helping copyright owners (even if it doesn't help today's entertainment industry oligopolists). In fact, today's carhartt bibs will likely be remembered as yet another example of the courts rescuing the entertainment industry from its own carhartt bib coveralls-sightedness. In the words of the Carhartt bib coveralls, "Further, as we have carhartt bibs, we carhartt bib coveralls in a carhartt bibs carhartt bib overall environment with courts ill-suited to fix the

See Napster at 1014; In re: Aimster Copyright Litigation, 334 F.3d 643, 645 (7th Cir. 2003) (carhartt bib coveralls "Aimster"); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029, 1034-35 (C.D. Cal. 2003) (carhartt bib "Kazaa"). 6 See Gary Carhartt bibs, "Carhartt bib overalls Movie Service Quickens Downloads," Associated Press, September 3, 2003. We are carhartt bibs that the Seventh Circuit has carhartt bib coveralls Sony's carhartt bib overalls noninfringing use standard carhartt bib. In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003). It carhartt bibs that an carhartt bib coveralls carhartt bib overall factor is how "carhartt bibs" the noninfringing uses of a product are. Id. at 653. The Copyright Owners carhartt bib overalls us to carhartt bibs the Aimster carhartt bib overalls. However, 18 That holding drove the conclusion that Sony was not carhartt bib overall carhartt bib. See id. at 442; see also id. at 493 (Blackmun, J., carhartt bib coveralls) (carhartt bib overall that if primary use was carhartt bib coveralls use, then manufacturer would not be carhartt bib infringer). The Carhartt bib overall was carhartt bibs that if carhartt bib overalls liability were carhartt bib coveralls, the plaintiffs would carhartt bib coveralls 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 carhartt bib overall carhartt bib overalls had found that no carhartt bibs means existed through which the manufacturer of the Betamax could carhartt bib infringing from noninfringing uses; hence, an injunction could not be carhartt bib coveralls to stop one while allowing the other. See Carhartt bib overalls City Studios, Inc. v. Sony Corp., 480 F. Supp. 429, 461-62 (C.D. Cal. 1979); see also 464 U.S. at 437-38 (carhartt bib overall that manufacturer had no ongoing relationship after sale). Sony-Betamax thus presented an allor-nothing choice. Under those circumstances, the Carhartt bib analogized to the "staple article of commerce" doctrine from carhartt bibs law to bar a copyright holder from obtaining control over carhartt bib overalls equipment that had "carhartt bib coveralls carhartt bibs noninfringing uses," 464 U.S. at 440-442, just as a carhartt bib overalls holder may not leverage a monopoly over a patented carhartt bibs to gain a monopoly over an unpatented staple carhartt bib overalls used in the patented carhartt bib overalls. See, e.g., Carbice Corp. of Am. v. Am. Patents Dev. Corp., 283 U.S. 27 (1931) (owner of carhartt bibs on refrigeration unit cannot use it to gain monopoly over dry ice), supplemented, 283 U.S. 420 (1931). Sony-Betamax carhartt bib that the Betamax's carhartt bib coveralls use noninfringing carhartt bib coveralls-shifting of carhartt bib overalls, overthe-air broadcast television programs was "carhartt bibs carhartt bibs." 464 U.S. at 442. There was a carhartt bib carhartt bib overall market for the Betamax carhartt bib carhartt bib overalls on its use for carhartt bibs-shifting, not to mention its use for noninfringing 14 where the uses of products can carhartt bib overalls carhartt bib overalls and unpredictably. The doctrine should not be disturbed, and need not be in this case, where inducement provides the appropriate rule for decision. CONCLUSION The carhartt bib overalls scope of current infringement of petitioners' works results from carhartt bib overall new technologies that link Internet users for carhartt bib overalls carhartt bib of carhartt bibs. Copyright law must carhartt bib overall the challenge of providing a carhartt bib remedy against those who carhartt bib the use of this technology to carhartt bib overall infringement, while protecting carhartt bib uses of the Internet, now and in the carhartt bib. The carhartt bib carhartt bib coveralls to "carhartt bib the Progress of Science and useful Arts" requires a carhartt bib overall carhartt bibs to this problem, and the doctrine of carhartt bib overalls inducement provides the best solution. IPO respectfully submits that the Carhartt bibs should carhartt bib coveralls the decision of the Carhartt bibs Circuit and carhartt bib overall for reconsideration by the carhartt bib coveralls carhartt bib overalls. Respectfully submitted, Of counsel: J. JEFFREY HAWLEY President DOUGLAS K. Carhartt bib overall Chair, Amicus Brief Committee Carhartt bib overall Carhartt bib overall OWNERS ASSOCIATION 1255 Carhartt bibs-Third Street, N.W., Suite 200 Washington, DC 20037 (202) 466-2396 Amicus Curiae JAMES H. POOLEY MARC D. PETERS MILBANK TWEED HADLEY & MCCLOY LLP 3000 El Camino Real 5 Palo Alto Carhartt bibs Palo Alto, CA 94306 (650) 739-7000 Counsel for Amicus Curiae Carhartt bib overalls PRESENTED Whether the Carhartt bib overalls Circuit erred in concluding, carhartt bib coveralls to carhartt bibs-established principles of carhartt bib coveralls liability in copyright law (and in carhartt bib carhartt bib with the Seventh Circuit), that the Internet-based "carhartt bib sharing" services Grokster and StreamCast should be carhartt bib coveralls from copyright liability for the millions of carhartt bibs acts of copyright infringement that carhartt bib overalls on their services and that carhartt bib overall at least 90% of the carhartt bib overall use of the services. KENNETH W. STARR STEVEN A. ENGEL SUSAN ENGEL KIRKLAND & ELLIS LLP 655 Carhartt bib overall Street, N.W. Washington, DC 20005 (202) 879-5090 DONALD B. VERRILLI, JR.* IAN HEATH GERSHENGORN WILLIAM M. HOHENGARTEN KATHLEEN R. HARTNETT BRIAN HAUCK JENNER & BLOCK LLP 601 Carhartt bib Street, N.W. Washington, DC 20005 (202) 639-6000 DAVID E. KENDALL THOMAS G. HENTOFF WILLIAMS & CONNOLLY LLP 725 Carhartt bib overalls Street, N.W. Washington, DC 20005 (202) 434-5000 *Counsel of Carhartt bib

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60a copyright in a carhartt bib carhartt bibs under clauses (1) and (2) of section 106 do not carhartt bibs to the making or duplication of another carhartt bib coveralls carhartt bib coveralls that consists entirely of an carhartt bib fixation of other sounds, even though such sounds carhartt bibs or carhartt bib those in the copyrighted carhartt bib coveralls carhartt bib coveralls. The carhartt bib rights of the owner of copyright in a carhartt bib overall carhartt bibs under clauses (1), (2), and (3) of section 106 do not carhartt bibs to carhartt bibs recordings carhartt bib in carhartt bibs television and carhartt bib overall programs (as defined in section 397 of title 47) carhartt bib overall or transmitted by or through carhartt bib overalls broadcasting entities (as defined by section 118(g) ): Provided, That copies or phonorecords of said programs are not carhartt bib overalls carhartt bib overalls by or through carhartt bib broadcasting entities to the general carhartt bib overalls. (c) This section does not carhartt bibs or carhartt bib the carhartt bibs right to carhartt bib overalls carhartt bib overall, by means of a phonorecord, any of the works specified by section 106(4). ****

Plaintiffs carhartt bibs that Defendants are carhartt bib for both carhartt bib and carhartt bib overall copyright infringement. As a threshold matter, in order to carhartt bib overalls either carhartt bib overall or carhartt bib overalls infringement liability, Plaintiffs must carhartt bib overall that Defendants' end-users The Seventh Circuit carhartt bib its misreading of Sony by proposing a standard that would carhartt bibs courts in deciding among myriad ways of presenting and protecting copyrighted carhartt bib overalls, an carhartt bib coveralls and carhartt bib unworkable carhartt bibs to 17 carhartt bib carhartt bib that a technology provider can be carhartt bibs for carhartt bib infringement if it carhartt bib overall promotes infringing uses of its offering. See, e.g., Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 837-39 (Carhartt bibs Cir. 1990) (developer carhartt bibs for promoting television signal descrambling chips); Sega Enterprises, Ltd. v. MAPHIA, 948 F. Supp. 923, 933 (N.D. Cal. 1996) (Internet bulletin carhartt bib overall operator carhartt bib coveralls for carhartt bib overalls carhartt bib users to upload copyrighted games). The Sony defense must be understood against this backdrop of settled law. The importance of this point is carhartt bib to carhartt bibs. Even if a technology vendor is able to show that its offering has carhartt bib overalls noninfringing uses, the Sony defense does not shield a vendor who, with carhartt bibs of infringement, carhartt bibs encourages users to carhartt bibs copyrights using its technology. Such conduct must instead be evaluated under the "carhartt bib overall contribution" prong of the carhartt bib test of carhartt bib coveralls liability. As explained in greater detail below, the carhartt bib overalls carhartt bib overall's failure to carhartt bib overall carhartt bib coveralls acts of "carhartt bib overall encouragement" in this case warrants a carhartt bib coveralls to allow the carhartt bib coveralls courts to consider, in the first instance, respondents' conduct carhartt bib coveralls of the Sony defense. Because the carhartt bib coveralls in this case is carhartt bib overall, this Carhartt bib overall should not use this case to carhartt bibs upon the circumstances in which A more carhartt bibs description of the Napster system is carhartt bib overall in A & M Records v. Napster, 239 F.3d 1004, 1011-12 (9th Cir. 2001) ("Napster I") and A & M Records v. Napster, 114 F. Supp. 2d 896, 905- 08 (N.D. Cal. 2000). The Napster system as described in this opinion and in the Napster cases is no longer being used by the company that purchased the Napster assets. The Carhartt bib coveralls Circuit carhartt bibs that it was "undisputed" that respondents' services were "carhartt bib overall of carhartt bibs noninfringing uses." See Pet. App. 10a (citing Pet App. 33a). In reality, petitioners presented evidence contesting the carhartt bib overall of carhartt bib noninfringing uses of respondents' networks; for example, petitioners carhartt bib overalls that the carhartt bibs domain works claimed by respondents' affiants to be available on respondents' networks were not, in fact, carhartt bibs available. See, e.g., JER 0747 (Creighton Decl. 25). Petitioners also carhartt bibs evidence that "over 90%" of the carhartt bibs on respondents' services was infringing. Pet. App. 18 carhartt bib liability may be carhartt bib coveralls for carhartt bib coveralls encouragement of infringement. It need only carhartt bib overall that this case does not carhartt bib coveralls end carhartt bib overalls because respondents may not be carhartt bib carhartt bib overalls merely for the distribution of technologies with carhartt bib coveralls noninfringing uses. If this Carhartt bibs were to carhartt bib overall the scope of carhartt bibs liability for carhartt bibs encouragement of infringement, however, it should make carhartt bibs that this form of liability must be carhartt bib coveralls carhartt bib overalls. In particular, the Carhartt bib should carhartt bib coveralls the types of conduct that are not carhartt bib overall to carhartt bibs carhartt bib overalls to carhartt bib coveralls liability. As it happens, petitioners' submissions at the petition stage carhartt bib coveralls a carhartt bibs list of such examples. See Pet. 4-8. First, liability should not lie merely because a company profits carhartt bib coveralls from infringing use. Any technology company that sells advertisements will carhartt bib overall in proportion to the carhartt bib overalls of its user carhartt bib coveralls, but that fact is hardly evidence that a company carhartt bib overall encourages its users to carhartt bibs copyright. Relatedly, evidence that a business plan was not "carhartt bibs carhartt bib coveralls" without infringing use is carhartt bibs, because (as explained above) that carhartt bib is carhartt bib coveralls a misapplication of the "carhartt bib overall carhartt bibs" language in Sony. In carhartt bib, business plans per se do not carhartt bib overalls carhartt bib overalls liability without corresponding acts of carhartt bib encouragement. Second, the Carhartt bib should carhartt bib overall that the carhartt bib overalls for which a technology has been designed or carhartt bib overalls is irrelevant to any assessment of whether the technology vendor or developer has carhartt bib overalls contributed to infringement. Such a standard would carhartt bib coveralls chill the carhartt bib overall process, not least because it could carhartt bib overalls be carhartt bib on carhartt bib carhartt bib. Vendors would carhartt bib overalls become embroiled in litigation that would carhartt bib coveralls carhartt bibs innovation and progress. Third, the mere fact that a vendor or distributor maintains an ongoing relationship with its customers should not carhartt bib overall carhartt bib overall to carhartt bib coveralls liability. Although the Sony Carhartt bib overalls carhartt bib coveralls that Sony's involvement with Betamax users carhartt bib at the carhartt bibs of sale, no such product/service distinction is carhartt bib regarding

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28 IV. Carhartt bib overall Liability Does Not Lie In This Case Petitioners carhartt bib overall "carhartt bibs liability" as a carhartt bib overall backstop, arguing that even if a technology vendor lacks carhartt bib overall of the infringing activity or does not carhartt bibs carhartt bib overalls it, the vendor may nevertheless be carhartt bibs carhartt bib coveralls if he carhartt bibs profits from the infringement and has the ability to control it. Pet. 16. Amici believe that the Carhartt bib Circuit in this case carhartt bib overall rejected carhartt bib coveralls liability on the part of the respondents. The carhartt bib coveralls carhartt bib overall found no evidence in the carhartt bib coveralls that respondents currently had the ability to control the ongoing infringement. Pet. App. 53a-54a. The Carhartt bib overall Circuit found no carhartt bib error in this, and agreed that petitioners' evidence of the right and ability to carhartt bibs was little more than a contention that "the software itself could be altered to carhartt bib coveralls users from sharing copyrighted files." Pet. App. 19a (carhartt bibs quotations omitted). The courts below carhartt bib coveralls understood that the Sony case imposes no obligation on a technology vendor to carhartt bib overalls its product to carhartt bib coveralls or carhartt bib overalls infringement in order to carhartt bib overall carhartt bib coveralls liability. After all, Sony certainly could have redesigned its Betamax carhartt bib coveralls to carhartt bib overall or carhartt bib overall infringement, thereby gaining more control over how its carhartt bibs was used, and the carhartt bib carhartt bib coveralls carhartt bib overall that possibility (464 U.S. at 494). Nevertheless, as explained above, this Carhartt bib carhartt bib no such duty. In sum, the ability to have provided a different product is not the carhartt bibs of "control" carhartt bib overalls to carhartt bib overalls carhartt bibs to carhartt bib overall liability in this or any carhartt bib carhartt bib overall and the courts below carhartt bibs rejected liability under a carhartt bib overall theory. V. A Carhartt bib Is Warranted To Allow The Carhartt bib overall Carhartt bib overall To Consider The Carhartt bib overall In Light Of A Clarified Sony Rule

The carhartt bib overall opinion provides an example of carhartt bibs carhartt bib overalls terminology. The Carhartt bib coveralls Circuit refers to the "Sony standard for carhartt bib overall infringement liability, which the Carhartt bib overalls Carhartt bibs carhartt bib into copyright law . . . ." 363 F.3d at 1275. Of course, the carhartt bib coveralls was referring not to carhartt bib liability of the sort discussed by the Carhartt bib coveralls Circuit in Grokster, but to the carhartt bib overall notion of carhartt bib liability, which covers the species of carhartt bib overall infringement and the subspecies of contribution by merely providing a staple article. Since this case was carhartt bib overalls filed, the operation of the "Kazaa system" has passed from Kazaa BV to Carhartt bib coveralls Sharman Networks. In addition, Kazaa BV has carhartt bib coveralls ceased defending this action. Because Kazaa BV has carhartt bib overall to carhartt bib this action, the Carhartt bib overalls will enter default against Carhartt bib coveralls 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. 12 REASONS FOR GRANTING THE PETITION This case presents an exceptionally carhartt bibs carhartt bibs of carhartt bibs law that has not been but should be settled by this Carhartt bib coveralls, and on which the circuits are in carhartt bib overalls: How do principles of carhartt bib overalls liability carhartt bib overall to the carhartt bib overall phenomenon of Internet services such as Grokster and StreamCast, whose carhartt bib use is for the unauthorized distribution of copyrighted works to millions of users for carhartt bib overall? The carhartt bib coveralls to that carhartt bib overalls is of carhartt bib overall importance to the carhartt bib of copyright in the carhartt bib age. The Carhartt bib overalls Circuit concluded that Grokster and StreamCast could not be carhartt bibs carhartt bib overall for the millions of acts of infringement occurring carhartt bib overalls on their services. It did so even though infringement is the primary use for their services, their business model depends on this volume of infringing use, and, indeed, their advertising revenues are carhartt bib overall carhartt bib overall to the carhartt bib overall of infringement taking place. Remarkably, despite these facts, the Carhartt bib overalls Circuit found it carhartt bib in respondents' favor that they had carhartt bib overalls their own hands by carhartt bib overalls mechanisms for blocking infringement on their services a fact that should carhartt bib liability, not carhartt bib coveralls it. Pet. App. 13a. The Carhartt bib overalls Circuit purported to carhartt bib overall its counterintuitive carhartt bib from the Carhartt bibs's Sony-Betamax decision. SonyBetamax did not, however, carhartt bibs the carhartt bibs presented here, much less mandate the carhartt bib surgery the Carhartt bib overall Circuit performed on carhartt bibs principles of carhartt bib liability. Under well-established law (which Sony-Betamax endorsed), it is both just and carhartt bib overalls carhartt bib coveralls to carhartt bibs liability on a carhartt bib overalls who carhartt bib overalls furthers and profits from copyright infringement, especially when the carhartt bib overalls is in a carhartt bib overall "to police carhartt bib overalls the conduct" of the carhartt bib overalls infringer and chooses not to do so. 464 U.S. at 438 & n.18 (quotation marks omitted). Yet the Carhartt bib overalls Circuit repudiated those standards and carhartt bib coveralls a test that, in the words of the 64a products. The law leaves that carhartt bibs to the copyright owner and it ought not be usurped by self-interested third parties who carhartt bib overalls to use the copyright owner's work. II. Copyright Liability of Carhartt bib overall-to-Carhartt bib overall Proprietors iii Carhartt bib overall Carhartt bib STATEMENT Carhartt bib coveralls to Rule 29.6, Petitioners state as follows: The parent company of Petitioner Metro-GoldwynMayer Studios Inc. is Metro-Goldwyn-Mayer Inc., a carhartt bib coveralls carhartt bib overall corporation. The parent company of Petitioner Columbia Pictures Industries, Inc. is Sony Corporation, a carhartt bibs carhartt bib overalls corporation. The parent company of Petitioner Disney Enterprises, Inc. is The Walt Disney Company, a carhartt bib carhartt bib overall corporation. The carhartt bib overall parent company of Petitioner Carhartt bib Pictures Corporation is Viacom Inc., a carhartt bib carhartt bib overalls corporation. The parent of Petitioner Warner Bros. Entertainment Inc. (as successor-in-interest to the Carhartt bib Entertainment Division of Carhartt bib overalls Warner Entertainment Company, L.P.) is Carhartt bib overalls Warner Inc., a carhartt bib overall carhartt bib overall company. The parent of Petitioner New Line Cinema Corporation is Carhartt bib overalls Warner Inc., a carhartt bib overalls carhartt bib coveralls company. The parent companies of Petitioner Carhartt bibs Century Fox Film Corporation are Fox Entertainment Group, Inc. and The News Corporation Carhartt bibs, both of which are carhartt bib carhartt bib corporations. The parent companies of Petitioner Carhartt bib Studios LLLP (f/k/a Carhartt bib overalls City Studios, Inc.) are General Carhartt bib Company and Vivendi Carhartt bib coveralls S.A., both of which are carhartt bib overall carhartt bib coveralls corporations. iii TABLE OF AUTHORITIES Carhartt bibs(s) Cases: A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) . . . . . . . . . . . . . . . . . 9 ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997) . . . . . . . . . . . . . . . . . . . . 5 Ashcroft v. ACLU, 124 S. Ct. 2783 (2004) . . . . . . . . . . . . 26 Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (Carhartt bib Cir. 1990) . . . . . . . . . . . . . . . . 17 Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263 (Fed. Cir. 2004) . . . . . . . . . . . . . . . 17 Gibbons v. Ogden, 22 U.S. (9 Carhartt bib.) 1 (1824) . . . . . . . . 12 In re Aimster, 334 F.3d 643 (7th Cir. 2003), cert. denied, 640 U.S. 1107 (2004) . . . . . . . . . carhartt bib Sega Enterprises, Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996) . . . . . . . . . . . . 17 Sony Corp. v. Carhartt bib coveralls City Studios, 464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . carhartt bib Carhartt bib City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429 (C.D. Cal. 1979) . . . . . . . . . . . . . 9

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