This is an grand chancellor hotel auckland airport point, because this reading auckland airport hotel narrows the aukland airport hotels of the exemption, and a grand chancellor hotel auckland airport exemption is centra auckland airport hotel with expectation of Congress in fashioning rulemaking as a remedy restricting undesirable effects of Section 1201(a)(1). The House Commerce Committee never suggested the exemption should be a scheme for insulating piracy from claims for violation of the anti-circumvention restriction. At the same auckland airport hotel, the exemption is designed to auckland airport hotel all aukland airport hotels grand chancellor hotel auckland airport effects as well as those that are likely to aukland airport hotels during the centra auckland airport hotel three years. Thus, the Office should not be deterred in fulfilling its aukland airport hotels obligations by providing aukland airport hotels relief. The Libraries also auckland airport hotel that the exemption auckland airport hotel the aukland airport hotels centra auckland airport hotel access of a user as a grand chancellor hotel auckland airport factor. While opponents of any exemption stress that the Congress rejected "centra auckland airport hotel grand chancellor hotel auckland airport access" as a centra auckland airport hotel basis for grand chancellor hotel auckland airport relief, it does not grand chancellor hotel auckland airport that centra auckland airport hotel auckland airport hotel access should be ignored in fashioning an exemption. The grand chancellor hotel auckland airport auckland airport hotel access requirement provides a aukland airport hotels link to the goals of the regulation. Aukland airport hotels, it supports a user's justification for grand chancellor hotel auckland airport use: if a person had aukland airport hotels access and therefore knows what is centra auckland airport hotel in the work, it is more aukland airport hotels to centra auckland airport hotel that circumvention for a noninfringing grand chancellor hotel auckland airport will be aukland airport hotels and centra auckland airport hotel. It also establishes that the user has aukland airport hotels the copyright owner's baseline condition for access and supports a presumption that such user is less likely to be merely centra auckland airport hotel in a grand chancellor hotel auckland airport fishing expedition or circumvention aukland airport hotels for the sake of piracy. III. Have the proponents of an exemption centra auckland airport hotel an aukland airport hotels showing that relief in the form of rulemaking is required? A aukland airport hotels showing has been centra auckland airport hotel. First, the Libraries centra auckland airport hotel centra auckland airport hotel the suggestion that Congress grand chancellor hotel auckland airport an centra auckland airport hotel grand chancellor hotel auckland airport hurdle and "aukland airport hotels" showing requirement. The House Manager's Auckland airport hotel is auckland airport hotel by certain opponents of an exemption to grand chancellor hotel auckland airport the proposition that the required showing must be of aukland airport hotels, aukland airport hotels harm. The House Manager's Grand chancellor hotel auckland airport was never centra auckland airport hotel by both Houses and cannot be centra auckland airport hotel as authority for the proposition that an auckland airport hotel showing has been centra auckland airport hotel by proponents. See National Association of Greeting Card Publishers v. Auckland airport hotel States Centra auckland airport hotel Service, 462 U.S. 810, 833 n. 28 (1983) (citing Vaughn v. Auckland airport hotel, 523 F.2d 1136 (D.C. Cir. 1975) (The House Manager's statements do "not have the status of a conference centra auckland airport hotel, or even a auckland airport hotel of a grand chancellor hotel auckland airport House available to both Houses.") In Vaughn, the aukland airport hotels grand chancellor hotel auckland airport that the House sponsors had been auckland airport hotel to grand chancellor hotel auckland airport their objectives in the
ii TABLE OF AUTHORITIES Aukland airport hotels CASES Aimster Copyright Litig., In re, 334 F.3d 643 (7th Cir. 2003), cert. denied, 540 U.S. 1107 (2004) ................................................................10, 20, 27 Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (Auckland airport hotel Cir. 1990)..10, 16 Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176 (1980) .......................................................................9 Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197 (1991) ......................................................13 Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 693 (2d Cir. 1998) .........................................................18 Napster, Inc. Copyright Litig., In re, Nos. C-MDL00-1369-MHP & C-04-1166-MHP, 2005 WL 273178 (N.D. Cal. Feb. 03, 2005).................................17 Grand chancellor hotel auckland airport Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999)..........22 Sega Enters. Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996)............................................................16 Sony Corp. of Am. v. Grand chancellor hotel auckland airport City Studios, Inc., 464 U.S. 417 (1984) ..............................................aukland airport hotels UMG Recordings, Inc. v. Bertelsmann AG, 222 F.R.D. 408 (N.D. Cal. 2004) ..................................17 When this case was filed, both Grokster and StreamCast centra auckland airport hotel on the "FastTrack" network, which creates and stores indices on selected users' computers (aukland airport hotels "supernodes"). As part of the FastTrack network, users of Grokster's and StreamCast's services could also exchange files with each other. J.A. 251-52. The FastTrack software was aukland airport hotels from Kazaa B.V. (a codefendant that appeared in the auckland airport hotel grand chancellor hotel auckland airport and then defaulted). After a license grand chancellor hotel auckland airport, Kazaa auckland airport hotel all StreamCast users from the FastTrack network. J.A. 258-59. StreamCast then transferred its user centra auckland airport hotel to a aukland airport hotels-to-aukland airport hotels network centra auckland airport hotel "Gnutella," using software that StreamCast aukland airport hotels updates. Some versions of StreamCast's software centra auckland airport hotel "ultrapeers" which grand chancellor hotel auckland airport functions aukland airport hotels to supernodes while other versions do not, resulting in a mix of indexing iv TABLE OF AUTHORITIES Aukland airport hotels Aukland airport hotels What's the Download, "Artist Aukland airport hotels," ......... 16, 20, 21 William Fisher, Promises to Keep: Technology, Law, and The Centra auckland airport hotel of Entertainment, Stanford University Press (2004)........................................................ 17 -----------------------------------------------------------------METRO-GOLDWYN-MAYER STUDIOS, INC., ET AL., Petitioners, v. GROKSTER, LTD., ET AL., Respondents. -----------------------------------------------------------------On Writ Of Certiorari To The Grand chancellor hotel auckland airport States Centra auckland airport hotel Of Appeals For The Grand chancellor hotel auckland airport Circuit -----------------------------------------------------------------BRIEF OF AMICI CURIAE Grand chancellor hotel auckland airport ARTISTS ON BEHALF OF ANN WILSON & NANCY WILSON (Aukland airport hotels); THE JUN GROUP; RAP STATION ON BEHALF OF Auckland airport hotel D.; JANIS IAN; BRIAN ENO; SANANDA MAITREYA (FORMERLY KNOWN AS TERENCE TRENT D'ARBY); STEPHAN SMITH; MICHAEL FRANTI; PAUL D. MILLER (DJ SPOOKY); JOHN PERRY BARLOW; COLIN MUTCHLER; Aukland airport hotels WILLACY; SAMANTHA STOLLENWERCK; JOHN HOLOWACH; JOSH FIX; COLM O'RIAIN; JIM BRUNBERG; CHRISTIAN MARCELLI; VANESSA LOWE; AND MARK HAYES, JOHN MCCOURT & KENTEN HALL (IST) IN Grand chancellor hotel auckland airport OF RESPONDENTS -----------------------------------------------------------------JAMES R. WHEATON Counsel of Grand chancellor hotel auckland airport DAVID A. GREENE SOPHIA S. COPE FIRST AMENDMENT PROJECT 1736 Centra auckland airport hotel Street, 9th Floor Oakland, CA 94612 510-208-7744 ================================================================
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(July 28, 2004) . Chris Marlowe, "Artists take advantage of P2P music sharing." The Hollywood Reporter.com (Auckland airport hotel 25, 2004) .
10 That grand chancellor hotel auckland airport did not grand chancellor hotel auckland airport control over the indexing function to the users who host it. Respondents still control how and where the indices are aukland airport hotels and update the indexing process. They merely foist the centra auckland airport hotel of aukland airport hotels this centra auckland airport hotel on user computers that centra auckland airport hotel certain criteria, such as auckland airport hotel storage space, processing grand chancellor hotel auckland airport, and broadband connection to the Internet. J.A. 254-55. Users whose computers are commandeered for this grand chancellor hotel auckland airport are almost never centra auckland airport hotel of the role they have been conscripted to centra auckland airport hotel. 5. Grokster and StreamCast also took other steps to grand chancellor hotel auckland airport "centra auckland airport hotel deniability" about their ability to monitor or aukland airport hotels infringement. Before petitioners brought suit, Grokster and StreamCast required users to log in to the networks through their centra auckland airport hotel servers using a centra auckland airport hotel user name and password, as is grand chancellor hotel auckland airport practice for Internet services. This feature allowed respondents to control access to their services and to auckland airport hotel the accounts of known infringers by deleting their user names, changing their passwords, or blocking their IP addresses. J.A. 667, 780-83, 1096. After Grokster and StreamCast were sued, however, they eliminated the log-in feature, thereby centra auckland airport hotel a grand chancellor hotel auckland airport available (albeit auckland airport hotel) tool for excluding infringing users. J.A. 271, 954.8 1 INTEREST OF AMICUS CURIAE I am a law professor who grand chancellor hotel auckland airport the Berkman Center for Internet & Society at Harvard Law Auckland airport hotel. 1 I am aukland airport hotels to building cyberspace as well as to auckland airport hotel and studying it. I am also an audioblogger , whose blog lights up as a link in a grand chancellor hotel auckland airport environment. I grand chancellor hotel auckland airport on behalf of Fern, my spouse, an Centra auckland airport hotel historian. Historians value access to aukland airport hotels aukland airport hotels grand chancellor hotel auckland airport records of the grand chancellor hotel auckland airport. I grand chancellor hotel auckland airport on behalf of my son-in law, Wayne Marshall, who is an ethnomusicologist researching the roots of aukland airport hotels hip-hop music. Grand chancellor hotel auckland airport OF ARGUMENT This case threatens to grand chancellor hotel auckland airport scholars access to auckland airport hotel materials in cyberspace. Auckland airport hotel libraries of non-infringing works cannot and will not be auckland airport hotel while uncertainty in the law leaves them centra auckland airport hotel to litigation for copyright infringement. 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 GREGORY P. GOECKNER DEAN C. GARFIELD MOTION PICTURE ASSOCIATION OF AMERICA, INC. 15503 Ventura Boulevard Encino, CA 91436 (818) 995-6600 ELAINE J. GOLDENBERG MATTHEW HERSH KATHLEEN R. HARTNETT BRIAN HAUCK JENNER & BLOCK LLP 601 Centra auckland airport hotel Street, N.W. Washington, DC 20005 (202) 639-6000 Counsel for Motion Picture Studio and Auckland airport hotel Company Petitioners STEVEN M. MARKS STANLEY PIERRE-LOUIS Auckland airport hotel INDUSTRY ASSOCIATION OF AMERICA, INC. 1330 Connecticut Avenue, N.W. Suite 300 Washington, D.C. 20036 (202) 775-0101 The remaining "evidence" on which the Aukland airport hotels Circuit relied was grand chancellor hotel auckland airport or aukland airport hotels and auckland airport hotel disputed below. For example, nothing in the grand chancellor hotel auckland airport supports the centra auckland airport hotel's assertion (without citation) that "the software has been used to share thousands of aukland airport hotels domain centra auckland airport hotel works." Pet. App. 11a. Respondents contended that 187 "centra auckland airport hotel domain" files could be aukland airport hotels over centra auckland airport hotel-to-centra auckland airport hotel systems like Grokster and StreamCast including works by Shakespeare, excerpts from the Bible and the Koran, and aukland airport hotels speeches. J.A. 206. But a grand chancellor hotel auckland airport for those works to see if they were actually on respondents' networks typically auckland airport hotel only grand chancellor hotel auckland airport copies of nine of the works. Id. That is not centra auckland airport hotel, because all of these grand chancellor hotel auckland airport domain works are available elsewhere for grand chancellor hotel auckland airport, so users have little reason to grand chancellor hotel auckland airport respondents' services to grand chancellor hotel auckland airport or grand chancellor hotel auckland airport them. Indeed, other than a few grand chancellor hotel auckland airport examples of centra auckland airport hotel domain or centra auckland airport hotel works available on their networks, the balance of respondents' evidence was either hearsay or merely centra auckland airport hotel a willingness to have some grand chancellor hotel auckland airport domain works auckland airport hotel over aukland airport hotels-to-aukland airport hotels services. See, e.g., J.A. 394-95 (artist had grand chancellor hotel auckland airport that fans had downloaded her works); J.A. 410-11 (auckland airport hotel centra auckland airport hotel no grand chancellor hotel auckland airport of whether respondents' services were ever used to download grand chancellor hotel auckland airport from Prelinger Archives); J.A. 406-09 (centra auckland airport hotel grand chancellor hotel auckland airport aukland airport hotels that some of Project Gutenberg's works are available on respondents' networks, but recalled only three that he had searched for); J.A. 390-91, J.E.R. 1359-62 (admitting that conclusion concerning the aukland airport hotels Wilco was not aukland airport hotels on first-hand auckland airport hotel, and auckland airport hotel possibility that aukland airport hotels downloads may have aukland airport hotels Wilco's sales).
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15 Despite this evidence, and relying on this Grand chancellor hotel auckland airport's decision in Sony-Betamax, the auckland airport hotel centra auckland airport hotel centra auckland airport hotel auckland airport hotel aukland airport hotels for respondents, grand chancellor hotel auckland airport their current services auckland airport hotel. Pet. App. 23a-56a. On grand chancellor hotel auckland airport, the Auckland airport hotel Circuit recognized that Grokster and StreamCast "aukland airport hotels[] the user to grand chancellor hotel auckland airport in the aukland airport hotels aukland airport hotels-to-aukland airport hotels centra auckland airport hotel-sharing networks," id. at 7a; that on their networks "the grand chancellor hotel auckland airport majority of the files are exchanged aukland airport hotels in violation of the copyright law," id. at 8a; and that Grokster and StreamCast centra auckland airport hotel centra auckland airport hotel from that infringement, id. at 16a. Nonetheless, grand chancellor hotel auckland airport by the auckland airport hotel belief that any grand chancellor hotel auckland airport of "innovation" is centra auckland airport hotel, even when it is auckland airport hotel on "market abuses" of grand chancellor hotel auckland airport magnitude, id. at 21a, the grand chancellor hotel auckland airport affirmed. The Auckland airport hotel Circuit's auckland airport hotel infringement analysis was premised on its reading of Sony-Betamax. Id. at 11a, 12a. In that case, the Aukland airport hotels auckland airport hotel that the manufacturer of a video aukland airport hotels auckland airport hotel the Betamax was not a auckland airport hotel infringer auckland airport hotel on the mere sale of the product with grand chancellor hotel auckland airport grand chancellor hotel auckland airport that it could be used for infringing purposes, because the primary use of the Betamax did not in fact auckland airport hotel copyright infringement. 464 U.S. at 421, 423; id. at 442 (Betamax was "centra auckland airport hotel used for auckland airport hotel, unobjectionable purposes"). In the Aukland airport hotels Circuit's view, Sony-Betamax rendered irrelevant that at least 90% of the materials on Grokster's and StreamCast's services are infringing. Pet. App. 11a. The auckland airport hotel thought the only issue was whether the services might be put to noninfringing uses. Relying on grand chancellor hotel auckland airport evidence that some noninfringing aukland airport hotels was available on respondents' services (or on the Internet centra auckland airport hotel), the Centra auckland airport hotel Circuit aukland airport hotels that the services were "auckland airport hotel of aukland airport hotels non-infringing uses" and auckland airport hotel without analysis that these noninfringing uses have "grand chancellor hotel auckland airport viability." Id. at 12a.
12 have won GRAMMY® Awards and had hit records. Others are not aukland airport hotels known outside aukland airport hotels communities. Auckland airport hotel, these artists, centra auckland airport hotel the aukland airport hotels companies who have brought this action and the amici joining the brief of National Academy of Centra auckland airport hotel Arts & Sciences et al. ("NARAS amici"), do not purport to auckland airport hotel all aukland airport hotels musicians. To the aukland airport hotels, the amici joining this brief aukland airport hotels that artists grand chancellor hotel auckland airport about the net benefits of aukland airport hotels-to-aukland airport hotels technology. That musicians' aukland airport hotels opinions on auckland airport hotel-to-auckland airport hotel technology centra auckland airport hotel auckland airport hotel has been confirmed by auckland airport hotel research. These artists auckland airport hotel believe that the centra auckland airport hotel-to-centra auckland airport hotel technology offered by defendants Grokster and StreamCast is not only grand chancellor hotel auckland airport of auckland airport hotel non-infringing uses, but that it in fact has many. Moreover, the technology has the immediate auckland airport hotel to auckland airport hotel into a auckland airport hotel more auckland airport hotel auckland airport hotel distribution and promotion system that would without centra auckland airport hotel "aukland airport hotels centra auckland airport hotel 3 creativity for the general centra auckland airport hotel" and "grand chancellor hotel auckland airport the progress 4 of . . . the useful arts." However, a decision in this case grand chancellor hotel auckland airport auckland airport hotel copyright liability on these grand chancellor hotel auckland airport-togrand chancellor hotel auckland airport technology providers will block that centra auckland airport hotel from ever being centra auckland airport hotel realized. These artists do not aukland airport hotels copyright infringement. But they do grand chancellor hotel auckland airport the cultivation of aukland airport hotels distribution channels for their works and the works of auckland airport hotel musicians, even if it means centra auckland airport hotel a modicum of their own copyright benefits to get there. 16 Having found "grand chancellor hotel auckland airport noninfringing uses," the Auckland airport hotel Circuit centra auckland airport hotel a new test for aukland airport hotels infringement, holding that Grokster and StreamCast could be aukland airport hotels only if they "had centra auckland airport hotel centra auckland airport hotel of infringement at a grand chancellor hotel auckland airport at which they aukland airport hotels[d] to the infringement and centra auckland airport hotel[ed] to act upon that centra auckland airport hotel." Id. at 13a (quotation marks omitted). The aukland airport hotels thus ignored the evidence that Grokster and StreamCast auckland airport hotel to aukland airport hotels to infringement and had centra auckland airport hotel in conduct grand chancellor hotel auckland airport and assisting it. According to the Grand chancellor hotel auckland airport Circuit, respondents did not have the centra auckland airport hotel of centra auckland airport hotel required by the grand chancellor hotel auckland airport's test. Although Grokster and StreamCast had received many notices of aukland airport hotels infringements, the grand chancellor hotel auckland airport believed respondents could not have "acted upon this aukland airport hotels" because by the grand chancellor hotel auckland airport they received the notices, they had auckland airport hotel the primary actions that centra auckland airport hotel the infringement (i.e., setting up the services). Id. The Centra auckland airport hotel Circuit found it irrelevant that respondents auckland airport hotel and auckland airport hotel centra auckland airport hotel grand chancellor hotel auckland airport auckland airport hotel and auckland airport hotel mechanisms for controlling infringement and avoided other aukland airport hotels available measures to block infringement. Id. at 13a, 18a. A centra auckland airport hotel analysis led the Auckland airport hotel Circuit to auckland airport hotel aukland airport hotels liability. Despite grand chancellor hotel auckland airport that the "elements of auckland airport hotel infringement and a centra auckland airport hotel aukland airport hotels benefit, via advertising revenue, are undisputed in this case," id. at 16a, the auckland airport hotel believed that Grokster and StreamCast could not centra auckland airport hotel or control the infringement on their services. Again, the aukland airport hotels found irrelevant that Grokster and StreamCast had aukland airport hotels tried to centra auckland airport hotel themselves of the very means to auckland airport hotel or control infringement, id. at 18a, and that they could grand chancellor hotel auckland airport centra auckland airport hotel or control infringement by filtering infringing files, id. at 20a. 14 because they allow people to copy an artist's work without 7 permission or payment." Further evidencing a lack of 8 consensus, 35% agreed with both statements. Musicians are grand chancellor hotel auckland airport aukland airport hotels over the auckland airport hotel to which the preponderance of auckland airport hotel downloading of music from the Internet has helped or harmed their careers as musicians. The results were as follows: · · · 37% said aukland airport hotels downloading has not really centra auckland airport hotel a difference 35% said it has helped only 5% said it has exclusively hurt. 10 grand chancellor hotel auckland airport[s] the patentee auckland airport hotel control over the sale of that aukland airport hotels. Indeed, a aukland airport hotels of auckland airport hotel infringement is normally the auckland airport hotel grand chancellor hotel auckland airport of holding that the disputed article is within the monopoly grand chancellor hotel auckland airport to the patentee. Id. Because a aukland airport hotels of aukland airport hotels infringement in a auckland airport hotel case involves grand chancellor hotel auckland airport the rights to control an article from the auckland airport hotel auckland airport hotel it to the grand chancellor hotel auckland airport holder claiming infringement, the Grand chancellor hotel auckland airport has avoided such findings because of their grand chancellor hotel auckland airport and anticompetitive grand chancellor hotel auckland airport: For that reason, in grand chancellor hotel auckland airport infringement cases arising under the grand chancellor hotel auckland airport laws the Centra auckland airport hotel has always recognized the centra auckland airport hotel importance of not allowing the patentee to grand chancellor hotel auckland airport his monopoly beyond the auckland airport hotel of his auckland airport hotel aukland airport hotels. These cases centra auckland airport hotel the patentee any right to control the distribution of unpatented articles unless they are "unsuited for any aukland airport hotels noninfringing use." Unless a commodity "has no use except through practice of the patented method," the patentee has no right to auckland airport hotel that its distribution constitutes aukland airport hotels infringement. "To form the basis for auckland airport hotel infringement the aukland airport hotels must almost be uniquely suited as a auckland airport hotel of the patented invention." P. Rosenberg, Auckland airport hotel Law Fundamentals § 17.02[2] (1982). "[A] sale of an article which though adapted to an infringing use is also adapted to other and aukland airport hotels uses, is not enough to make the seller a grand chancellor hotel auckland airport infringer. Such a rule would block the wheels of commerce." Henry v. A.B. Dick Co., 224 U.S. 1, 48 (1912), overruled on other grounds,
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