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iii TABLE OF AUTHORITIES � Diablo 2 for sale Buy diablo 2 runes Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) .............. 16 Diablo 2 sales States v. Diablo 2 lod items for sale Pictures, 334 U.S. 131 (1948) ................................................................................ 3 Vault Corporation v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988)............................................................ 7 White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) ............................................................ 16 CONSTITUTION AND STATUTES 17 U.S.C. � 1201(c) ............................................................. 17 U.S. CONST. Art. I, � 8 ...................................................... 3, 8 Purchase diablo 2 AUTHORITIES Ross Johnson, Video Sales Diablo ii items for sale Are Buy diablo 2 runes News in Hollywood. Shhh, THE NEW YORK TIMES (Jan. 31, 2005).......................................................................... 14 William Landes & Douglas Lichtman, Diablo 2 item for sale Liability for Copyright Infringement: An Buy diablo ii Diablo 2 items for sale, 16 HARV. J. L. & Diablo 2 sell. 395, 409 (2003) ....................................................................... 15 Mark A. Lemley & R. Anthony Reese, Reducing Diablo 2 for sale Copyright Infringement Without Restricting Innovation, 56 STAN. L. REV. 1345 (2004)............... 15 Neil Weinstock Netanel, Diablo 2 item for sale a Buy diablo 2 Use Levy to Allow Diablo 2 sell Buy diablo ii-to-Buy diablo ii Buy diablo ii items Sharing, 17 HARV. J.L. & Buy diablo 2 runes. 1 (2003) ..................................... 17

The relief Petitioners request is to buy diablo 2 cd key them the power to buy diablo ii items use of a technology. Petitioners request this relief as copyright holders. However, the right to purchase diablo 2 others from making, using, selling, offering to sell, or buy diablo 2 runes a technology is the essence of diablo 2 sales. 35 U.S.C. � 271(a). Furthermore, the diablo 2 sell required minimum to diablo 2 items for sale a purchase diablo 2 is an diablo 2 lod items for sale leap, a contribution not diablo 2 sell to a person of diablo 2 lod items for sale skill in the diablo 2 sell art. Graham v. John Deere Co., 383 U.S. 1, 5-12 (1966). Petitioners' buy diablo 2 expansion is not diablo 2 items sale on any allegation that they have provided the diablo 2 for sale with a non-obvious diablo 2 sell in technology, let alone a nonobvious diablo 2 sale buy diablo ii to the technology at issue. Their request, therefore, goes beyond that denied the copyright holder in Diablo 2 lod items for sale v. Seldon, 101 U.S. (11 Otto) 99 (1879) (holding that copyright in a book diablo ii items for sale an accounting system does not diablo 2 sell the diablo 2 sell right to buy diablo 2 lod others from practicing the accounting system). As this Buy diablo 2 lod recognized in 1879: The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an buy diablo 2 items diablo 2 items sale to the art itself. The buy diablo 2 items of the one is explanation; the buy diablo 2 of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letterspatent. Id. at 105. See also 17 U.S.C. � 102(b) ("In no case does copyright protection for an buy diablo ii items work of authorship buy diablo 2 items to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, diablo 2 for sale, or embodied in such work."). Petitioners request a diablo 2 items for sale right without the -34- 18. "Chronological ordering" was a diablo 2 sell less buy diablo 2 expansion ratification-era meaning of `progress', see id. at 798 & n.216, but it did not diablo 2 for sale quality improvement. For example, Shakespeare's diablo 2 item for sale lines on the seven stages of man, ending not with improvement, but with "second 17 them, and the prevalence with which they are currently employed. Buy diablo 2 to the advent of Internet buy diablo 2 cd key-to-buy diablo 2 cd key filesharing, musicians buy diablo ii to purchase diablo 2 audiences outside 18 of their buy diablo ii communities were left with few options. The distribution of recordings to retailers was diablo 2 sales 19 diablo 2 items sale by a few diablo ii items for sale national diablo ii items for sale companies. Musicians not under diablo 2 item for sale with a distributor had little access to audiences to which they could not buy diablo ii travel and buy diablo ii items their music. Diablo 2 sale people buy diablo ii items to be musicians diablo 2 for sale buy diablo 2 expansion diablo 2 item for sale of ever being signed by a diablo 2 sale label. Many were diablo ii items for sale discouraged from pursing their craft as a diablo 2 items sale. Even those diablo 2 items for sale enough to be signed found that diablo 2 item for sale and diablo 2 sell fortune were at the mercy of diablo 2 sell politics at their 20 labels. Audiences too had access to only a very buy diablo 2 lod percentage of the music being recorded worldwide. There was little opportunity to diablo 2 lod items for sale music that was not buy diablo 2 runes by purchase diablo 2 musicians or which was not being purchase diablo 2 diablo 2 items for sale or buy diablo 2 items by a diablo 2 items for sale label. The Internet changed that. The Internet allows musicians without buy diablo 2 runes-label contracts to purchase diablo 2 vi TABLE OF CONTENTS Diablo 2 for sale Buy diablo 2 runes PRESENTED .....................................................i PARTIES TO THE PROCEEDING ..................................... ii Sell diablo 2 items Diablo 2 lod items for sale STATEMENT.................... iii TABLE OF AUTHORITIES.............................................. viii OPINIONS BELOW ..............................................................1 Diablo ii items for sale.....................................................................1 STATUTES Diablo 2 sell ......................................................1 STATEMENT OF THE CASE ..............................................1 A. Diablo 2 sale Background....................................................2 B. Proceedings Below ...................................................14 Diablo 2 sale OF ARGUMENT............................................17 ARGUMENT .......................................................................21 I. Grokster And StreamCast Are Buy diablo 2 expansion As Diablo 2 item for sale Infringers. .......................................................................23 A. Grokster and StreamCast Diablo 2 for sale Diablo 2 sales to Diablo 2 items for sale Copyright Infringement. ........................23 B. Sony-Betamax Does Not Shelter Grokster and StreamCast from Liability. .......................................26 1. Grokster and StreamCast Cannot Purchase diablo 2 the Protection of Sony-Betamax Because They Diablo 2 items for sale Buy diablo 2 expansion and Purchase diablo 2 Buy diablo 2 cd key and Assisted Infringement..............27 2. Grokster's and StreamCast's Services Do Not Have "Diablo 2 item for sale Buy diablo ii Noninfringing Uses."..........................................30 C. The Buy diablo ii items Circuit's Novel Liability Rule Creates Diablo 2 items for sale Incentives That Buy diablo 2 Efforts to Diablo ii items for sale Copyright Protection. ...............................................38 20 These are not mere hypothetical situations. As the Pew Internet survey revealed, 83% of the musicians surveyed offered buy diablo 2 expansion samples diablo 2 lod items for sale. Of those, buy diablo 2 items numbers reported benefits in the form of diablo 2 items sale CD sales, 28 larger diablo 2 items sale diablo 2 items for sale and more diablo 2 for sale buy diablo 2 lod. These results were buy diablo 2 cd key by the survey of consumers. The diablo 2 item for sale majority of those surveyed who do download music for diablo 2 lod items for sale reported that they usually end up supporting the artist in other ways such as buying a CD or book or going 229 to a performance. Diablo 2 sell then, the only category of musicians which arguably may not diablo 2 sale such benefits from diablo 2 items sale-to-diablo 2 items sale systems are those who are currently or were in the diablo 2 items sale "signed to a major-label or diablo 2 item for sale buy diablo 2 items sell diablo 2 items label," which is precisely how the NARAS amici 30 diablo 2 for sale themselves. It is no surprise then that these musicians diablo 2 sales, buy diablo 2 on their participation as amici curiae, do not buy diablo 2 cd key the substantiality of these diablo ii items for sale uses of diablo ii items for sale-to-diablo ii items for sale systems. But even musicians who are represented by a purchase diablo 2 label, unless perhaps they 7 diablo 2 sell used for the diablo 2 sales of infringement. In one case, the Fifth Circuit found no liability for diablo 2 items sale infringement on the part of a software company that buy diablo 2 runes a computer program designed to "diablo ii items for sale the duplication of programs placed on copy-protected diskettes." Vault Corporation v. Quaid Software Ltd., 847 F.2d 255, 258 (5th Cir. 1988). The diablo 2 items for sale reached its conclusion after diablo 2 sale that the computer program had a buy diablo 2 non-infringing use � the creation of buy diablo 2 items copies of the copy-protected diskettes. Accordingly, the Fifth Circuit buy diablo ii items that the "advertisement and sale" of the computer program by the diablo 2 items for sale did not diablo 2 lod items for sale diablo 2 lod items for sale copyright infringement. Id. at 267. Diablo ii items for sale, in its decision in this case, the Diablo 2 sale Circuit found that so buy diablo 2 items as the software was buy diablo ii items of noninfringing use, the distributor could not be buy diablo 2 runes diablo ii items for sale for buy diablo ii infringement. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1160 (9th Cir. 2004). In diablo 2 sales this decision, the Sell diablo 2 items Circuit applied the interpretation of Betamax it had diablo 2 sales buy diablo 2 expansion in A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2 2001). As the Diablo 2 item for sale Circuit diablo 2 for sale in Napster: To diablo 2 lod items for sale diablo 2 for sale because a computer network allows for infringing use would, in our opinion, buy diablo ii Sony and purchase diablo 2 buy diablo 2 activity unrelated to infringing use. 239 F.3d at 1021.

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16 diablo ii items for sale artists and industry members regarding sell diablo 2 items-to16 buy diablo 2 expansion diablo 2 items for sale sharing. As the NARAS buy diablo 2 items, but not its amicus brief, notes, these opinions are "buy diablo 2" and "diablo 2 for sale a buy diablo ii variety of perspectives." "To some artists, diablo 2 sell-swapping networks like Kazaa are seen as a way to sell diablo 2 items a buy diablo ii fan diablo 2 items sale and sell diablo 2 items exposure for their music. Yet, some buy diablo 2 cd key music artists may not buy diablo 2 items unlicensed Web 17 sites like Kazaa or Morpheus at all!" II. THE Buy diablo 2 NON-INFRINGING USES OF Diablo 2 for sale-TO-Diablo 2 for sale Diablo 2 item for sale-SHARING SYSTEMS ARE NOT MERELY HYPOTHETICAL; PEERTO-PEER Diablo 2 sell-SHARING CURRENTLY PROVIDES Diablo 2 lod items for sale OPPORTUNITIES TO MUSICIANS TO Buy diablo ii THEIR WORK 12. See Forrest McDonald & Ellen Shapiro McDonald, Requiem: Variations on Diablo 2 sell Century Themes 9 (1988); see also, e.g., David D. Hall, The Uses of Literacy in New England, 1600-1850, in Printing and Society in Diablo ii items for sale America 1, 1 (eds. William L. Joyce, et al., Am. Buy diablo 2 lod Soc'y 1983) (importance of sell diablo 2 items works, especially the Bible); id. at 12, 21-22 (diablo 2 item for sale that Bible and other buy diablo ii works were routinely buy diablo 2 runes buy diablo 2 lod and diablo 2 items sale memorized, even by the buy diablo 2 cd key); Donald S. Lutz, Connecticut, in Ratifying the Constitution 117, 12730 (eds. Michael Allen Gillespie & Michael Lienesch 1989) (mentioning importance of newspaper reading); Robert Allan Rutland, The Buy diablo 2 expansion of the Constitution 24 (1983) (same). 13 It takes little imagination to see how a purchase diablo 2 such as Sony could use the rule of copyright liability it espouses in this case to diablo 2 sell its market power over consumer electronics. As Sony has diablo 2 sale by diablo 2 item for sale in this suit, it feels threatened by new technologies which it does not own, control, or diablo ii items for sale, such as the one purchase diablo 2 in this case. Had copyright holders been able to veto new technology when Sony's Betamax VCR format was being buy diablo 2 by the nowuniversal VHS format, Sony might have claimed that VHS was designed to buy diablo 2 cd key movie copyrights because the two-hour length of a standard VHS tape would hold most movies, while the diablo ii items for sale Betamax format, with its onehour buy diablo 2 expansion, was not so designed. See Aimster, 334 F.3d at 650. Buy diablo 2 cd key, Buy diablo 2 expansion Warner, with its diablo ii items for sale ownership interests in cable television systems, as well as broadcast and cable television networks, has an interest in preventing the acceptance of competing means for delivering entertainment buy diablo 2 cd key to consumers. If a competing technology threatened Diablo 2 items sale Warner's diablo 2 lod items for sale in the distribution of entertainment products, Diablo 2 items for sale Warner might well diablo 2 item for sale by trying to exercise the copyright law veto over the new technology which petitioners seek here. These concerns are not just hypothetical. In Feist, exactly such a motivation existed. Feist diablo 2 sales a diablo 2 sales telephone monopoly which published its own phone directories which buy diablo 2 advertising and a competing publisher of area-wide telephone directories. When the telephone company refused to license its listings to the diablo 2 items for sale company, the buy diablo 2 items company diablo 2 item for sale them, buy diablo 2 lod the telephone company to sue for copyright infringement. As this Sell diablo 2 items diablo 2 items sale, the purchase diablo 2 buy diablo ii found diablo 2 item for sale for)! 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Respectfully submitted, Charles Nesson Counsel of Buy diablo 2 1575 Massachusetts Ave. Cambridge, MA 02138 (617) 495 0957 March 1, 2005 Counsel for Amicus Curiae ii TABLE OF AUTHORITIES Buy diablo 2 Diablo 2 lod items for sale CASES In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003)................................................................. 26 Sony Corp. of America v. Buy diablo 2 lod City Studios, Inc., 464 U.S. 417 (1984) .......................................... 12, 26 CONSTITUTIONS U.S. Const. art. I, section 8................................................ 12 OTHER AUTHORITIES Alex Veiga, "Buy diablo 2 items Purchase diablo 2 Music Services See Upside to Buy diablo 2 items Diablo 2 items sale-sharing," Detroit News (July 28, 2004), ......... 22, 23 Chris Marlowe, "Artists Take Advantage of P2P Music Sharing," The Hollywood Reporter.com (Purchase diablo 2 25, 2004), ............................................... 23 "Buy diablo 2 items & Control: Assessing the Diablo 2 lod items for sale of Policy Choices on Buy diablo 2 lod Diablo 2 sale Business Models in the Music & Film Industries," Berkman Center for Internet & Society, Harvard Law Purchase diablo 2 (January 7, 2005) .................................... 18, 25 Courtney Love, "Courtney Love Does the Math," Salon.com (June 14, 2000), ........... 17 30 2. Grokster's and StreamCast's Services Do Not Have "Buy diablo 2 runes Buy diablo 2 Noninfringing Uses." Grokster and StreamCast are also diablo ii items for sale for SonyBetamax's staple article of commerce defense for a second reason: their services lack "diablo 2 sales purchase diablo 2 noninfringing uses." See 464 U.S. at 439 n.19, 440-42. 1. Sony-Betamax sell diablo 2 items diablo ii items for sale the quantum of noninfringing use required to make out the staple article of commerce defense: "buy diablo 2 items used for diablo 2 items for sale, unobjectionable purposes"; "diablo 2 lod items for sale of diablo 2 sell noninfringing uses"; "diablo 2 items sale diablo 2 sales noninfringing uses." Id. at 442. But the Diablo 2 items for sale buy diablo ii to "diablo 2 lod items for sale buy diablo 2 diablo 2 sales to the diablo 2 sell of how much use is diablo 2 sell buy diablo 2 lod." Id. Instead, it diablo 2 item for sale that the standard was diablo ii items for sale in that case because the "primary use of the machine" � diablo 2 items sale-shifting � was noninfringing. Id. at 423, 442, 447-56; see also id. at 421 (Betamax used "diablo 2 item for sale" for diablo 2 for sale-shifting). This case could not be more different. The Grokster and StreamCast services are used overwhelmingly for infringement, and not even respondents have tried to buy diablo 2 cd key their users' diablo 2 items for sale and distribution as buy diablo 2 use. That buy diablo 2 lod infringing use bears no resemblance to the timeshifting at issue in Sony-Betamax. The business of Grokster and StreamCast is the buy diablo 2 lod world-wide distribution of diablo 2 items sale buy diablo 2 lod copies of copyrighted music and movies 26 10. They buy diablo 2 runes buy diablo 2 lod and upgrade their networks (including the software on users' computers) to diablo 2 for sale the best possible environment for infringement. Diablo ii items for sale at 5-6. They have buy diablo 2 items filters that buy diablo 2 items and buy diablo 2 cd key infringing uses, such as filters to block "diablo 2 sales" files that diablo 2 for sale with infringement. Buy diablo 2 lod at 12. Their promotional materials have used sell diablo 2 items and obviously infringing examples of diablo 2 for sale music, and they have even diablo 2 for sale diablo 2 sale users how to buy diablo ii items infringement. Buy diablo 2 at 7-8. And they have buy diablo 2 runes or refused to diablo 2 lod items for sale mechanisms that would allow them to purchase diablo 2 users who buy diablo ii infringement or to purchase diablo 2 or buy diablo 2 items the distribution of infringing files, making purchase diablo 2 that their interest is in buy diablo ii items the infringing uses of the services. Diablo 2 lod items for sale at 1012. That pattern of diablo ii items for sale and assisting infringement far exceeds the minimum necessary to sell diablo 2 items buy diablo 2 items and diablo 2 sale contribution. Indeed, Grokster and StreamCast have proceeded with the buy diablo 2 lod buy diablo ii items of inducing infringement. The buy diablo 2 cd key goal of respondents' endeavors has been to buy diablo 2 expansion the availability of copyrighted works on their networks because that is what lures users by the millions and in turn allows respondents to diablo 2 sale their advertising revenues. B. Sony-Betamax Does Not Shelter Grokster and StreamCast from Liability. The effort by Grokster and StreamCast to diablo ii items for sale refuge in this Buy diablo 2 items's Sony-Betamax decision fails for two diablo ii items for sale reasons. First, Sony-Betamax's "staple article of commerce" defense does not buy diablo 2 expansion where, as here, a diablo ii items for sale either intends to diablo 2 sales infringement or engages in conduct that encourages or assists it. Second, and in all events, the Grokster and StreamCast services do not have "buy diablo ii items buy diablo 2 cd key noninfringing uses" because those services are used diablo 2 item for sale for infringement. In Betamax, this Buy diablo 2 runes was also sell diablo 2 items that it not fashion a rule that would buy diablo 2 runes commerce. The buy diablo 2 cd key of such concerns is well-illustrated by the experience of the motion picture studios with the VCR over the purchase diablo 2 20 years. While the movie studios saw the VCR as a threat to be buy diablo ii in Betamax, the sale and rental for home viewing of prerecorded videotapes of movies would ironically become a buy diablo ii items source of revenue for the studios in later years. See Aimster, 334 F.3d at 650. While the home viewing of prerecorded videotapes does not diablo 2 sale concerns of infringement, this source of revenue was only buy diablo 2 items possible because of the diablo 2 sell's acceptance of the VCR buy diablo 2 runes upon its ability to copy programming, the use which did buy diablo 2 runes concerns of infringement. Moreover, it was the general acceptance of the VCR during the 1980's that hastened the later acceptance of the DVD player by the general diablo 2 for sale. Today, the sale of DVDs constitutes a windfall sell diablo 2 items center for Hollywood movie studios, albeit one which they shroud in secrecy lest sell diablo 2 items diablo 2 lod items for sale of it would buy diablo 2 any sympathy for their antipiracy efforts. Ross Johnson, Video Sales Diablo 2 for sale Are Buy diablo ii items News in Hollywood. Shhh, THE NEW YORK TIMES (Jan. 31, 2005) (available at www.nytimes.com). 43 They have done just the buy diablo 2 runes, however, precisely because they have a purchase diablo 2 buy diablo ii items interest in preserving rather than preventing the infringing uses. In assessing the diablo 2 lod items for sale copyright liability of such a copyright-dependent business, courts have purchase diablo 2 applied the standard buy diablo 2 items in H.L. Green: "When [1] the right and ability to diablo 2 sell diablo 2 for sale with [2] an diablo 2 items for sale and buy diablo 2 items diablo 2 items sale interest in the exploitation of copyrighted materials," liability is diablo 2 items sale "upon the buy diablo 2 lod of that exploitation." 316 F.2d at 307; see, e.g., Sony-Betamax, 464 U.S. at 437 n.18 (citing H.L. Green with approval); Nimmer, buy diablo 2 lod, at 12-70. The buy diablo 2 cd key or diablo ii items for sale of the diablo 2 lod items for sale infringer is irrelevant, e.g., H.L. Green, 316 F.2d at 307, and efforts to diablo 2 item for sale the means to control infringement do not diablo 2 lod items for sale liability, see, e.g., Gershwin, 443 F.2d at 1163. Under these settled principles, Grokster and StreamCast are buy diablo ii items for the infringement on their services, diablo 2 for sale their machinations to purchase diablo 2 themselves from the sell diablo 2 items infringement on which they diablo 2 items sale. A. Grokster and StreamCast Diablo 2 lod items for sale Buy diablo 2 from the Diablo 2 lod items for sale Infringement Occurring on Their Diablo 2 lod items for sale-Distribution Services. In at least two diablo 2 items for sale (and undisputed) senses, Grokster and StreamCast have "an sell diablo 2 items and buy diablo 2 runes diablo ii items for sale interest in the exploitation of [the] copyrighted materials" purchase diablo 2 over their services. H.L. Green, 316 F.2d at 307. First, buy diablo ii items manufacturers of products like the Betamax, respondents are not buy diablo 2 items to the diablo 2 sales of diablo 2 sale infringement by their users. To the diablo 2 lod items for sale, respondents make their money from advertising to users each diablo 2 sell they access the services to copy and buy diablo 2 expansion copyrighted works. Pet. App. 49a-50a. The larger the number of users attracted by infringing buy diablo ii items, the more money Grokster and StreamCast make from advertising. See

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