Arista Records LLC et al v. Lime Wire LLC et al

Filing 274

DECLARATION of Melinda E. LeMoine in Support re: 234 MOTION for Permanent Injunction.. Document filed by Capitol Records, Inc., Elektra Entertainment Group, Inc., Interscope Records, Laface Records LLC, Motown Record Company, L.P., Arista Records LLC, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings, Inc., Virgin Records America, Inc., Warner Bros. Records Inc., Atlantic Recording Corporation, BMG Music. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Lemoine, Melinda)

EXHIBIT 3

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IN THE SUPREME COURT OF THE UNITED STATES --------------------x METRO-GOLDWYN-MAYER STUDIOS, INC., ET AL., Petitioners, : : : : : No. 04-480

GROKSTER, LTD, ET AL.

--------------------x Washington, D.C. Tuesday, March 29, 2005 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:13 a.m. APPEARANCES:
DONALD B. VERRILLI, JR., ESQ., Washington, D.C.; on behalf
of the Petitioners. PAUL D. CLEMENT, ESQ., Acting Solicitor General, Department of Justice, Washington, D.C.; for United States, as amicus curiae, supporting the Petitioners. RICHARD G. TARANTO, ESQ., Washington, D.C.; on behalf of the Respondents.

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people to point to, in those situations, capabilities for future uses. I do think that -How would you express the --

JUSTICE SOUTER:

how would you express that, that substantive standard that anticipates, just as you suggested we do? MR. CLEMENT: Well, I was just trying to

articulate it, which is to say that this Court has talked about the capacity for noninfringing uses. I think, with

a mature product like this, it's fair to point to how it's actually used in the marketplace. CHIEF JUSTICE REHNQUIST: Clement. MR. CLEMENT: Thank you. Mr. Taranto, we'll Thank you, Mr.

CHIEF JUSTICE REHNQUIST: hear from you.

ORAL ARGUMENT OF RICHARD G. TARANTO ON BEHALF OF RESPONDENTS MR. TARANTO: Thank you, Mr. Chief Justice, and

may it please the Court: Because Respondent's software products are tools of autonomous communications that have large and growing legitimate uses, their distribution is protected under the clear Sony rule. That rule should be adhered to by this

Court, because copyright does not generally step into the role of product control, because doing so would cause

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overkill.

The Sony rule safeguards legitimate uses by

protecting the product and -JUSTICE O'CONNOR: Yeah, but active inducement

is a doctrine that's been employed to curb the intentional encouragement of noninfringing uses, isn't it? MR. TARANTO: Not in copyright law, it hasn't, My primary point is that

but that's not my primary point.

it is critical, it is jurisdictionally critical, to separate two separate acts, distributing the product and any of the past acts that the Petitioners allege constituted encouragement, their synonym for "inducement," which were explicitly outside the District Court ruling that was certified for interlocutory appeal. Questions about past acts not inherent in the distribution of our product -JUSTICE SCALIA: are inherent. But they are inherent. They

I mean, the point is that those ASDACS are

what have developed your client's current clientele. MR. TARANTO: Scalia. No, I don't think so, Justice

The Petitioners -- this is what I think is key or They claim that there is an

usable about the past acts.

intent, as part of the current distribution of the product, to profit from increased use, including generically known infringing use, a point on which the District Court and the Court of Appeals assumed to be the

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case.

Beyond that, the question whether there were

encouraging acts, any kind of promotional activity that says, "We ask you to, and urge you to, use this product for infringement," that is not here, because that was explicitly part of the past activities, removed from the District Court decision. And when the Petitioners sought

interlocutory appeal, they said, expressly, these were "distinct and severable," in their terms -- that's a quote -JUSTICE SOUTER: MR. TARANTO: But I don't --

-- from the past. -- understand how you can One,

JUSTICE SOUTER:

separate the past from the present in that fashion.

I suppose, could say, "Well, I'm going to make inducing remarks Monday through Thursday, and I'm going to stop, Thursday night." The sales of the product on Friday are

still going to be sales which are the result of the inducing remarks Monday through Wednesday. And you're

asking, in effect -- you're asking us -- to ignore Monday through Thursday. MR. TARANTO: clear. No, I'm not. Let me try to be

There is a theory, not present here, along exactly

those lines, which Petitioners are entitled to argue, back in the District Court, without a remand, because that issue remains in the District Court. It is a theory that

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says, "You started your business with illegitimate acts, your current business is a causal consequence of that." will say, there is not one bit of evidence that the Petitioners introduced, in resisting summary judgement, in support of that theory. It is, in fact, a highly I

implausible theory, for reasons that the District Court can explain, because users of software like this switch readily. software. There is no plausible lock-in effect to this People go from Kazaa to Grokster to eDonkey to That was -- that is an available

BitTorrent week by week. theory. You would -JUSTICE SOUTER:

Then why was current -- why was

inducement, as a current theory of recovery, even the subject of summary judgement? It seems to me that to make

it a summary judgement is implausible to a non worldly degree. MR. TARANTO: I'm not entirely -I mean, I thought you were

JUSTICE SOUTER:

saying that, so far as the inducement theory of recovery is concerned -MR. TARANTO: Yes. -- the only summary judgement

JUSTICE SOUTER:

that was granted was with respect to current acts of inducement, the way the company is acting now, not the way the company was acting last year. And my question is --

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if that is correct, then I don't see how summary judgement could even intelligibly have been considered. MR. TARANTO: I think -- because as the

Petitioners insisted when they pressed for interlocutory appeal, they said these were distinct and severable, because, as Justice Scalia referred to before, the important question, on a going-forward basis, is whether the current set of activities -- this software, given how it operates, being generally distributed -- is a vendor's -- the distributor of that software -- secondarily liable because somebody else, tomorrow, can do exactly the same thing, without the baggage of any -JUSTICE KENNEDY: Well, I don't want to get us

too far off the track on this question, but it just seems to me that what you've done before bears on what you know, or have reason to know, on an ongoing basis. MR. TARANTO: I agree with that, Justice This case was

Kennedy, but there's no dispute about that.

decided on the assumption, which we are not contesting here, that the Respondents here knew that there would be widespread infringing use of a product that they were putting out, and, what's more, that they intended to profit from maximum use of the product, which necessarily would include infringing use, which they had no ability to separate from noninfringing use.

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