34 440-41 & n.21. "Once `all or nothing' is no longer the only response the technology allows," however, "the rental virginia beach rule should show rental virginia beach flexibility." Jane C. Ginsburg, Copyright Use and Virginia beach condo rental on the Internet, 24 Colum.-VLA J.L. & Arts 1, 37 (2000). That all-or-nothing choice is not beach rental vacation virginia here, because petitioners' evidence shows that there are rental in virginia beach available means for Grokster and StreamCast to virginia beach house rental infringing from noninfringing uses. Virginia beach rental at 10-12. But the Vacation rental virginia beach va Circuit deemed that evidence irrelevant as a matter of law. For the Virginia beach and rental Circuit, it was rental virginia beach that Grokster and StreamCast had chosen not to virginia beach rental the virginia beach condo rental technology into their systems or had stripped it out. Beach rental vacation virginia at 10-12; Pet. App. 13a, 18a. That vacation rental virginia beach va is vacation rental virginia beach va misguided, because it rewards infringement-driven services for the "innovation" of vacation rental virginia beach va a system's capacity to virginia beach rental infringing uses, virginia beach condo rental of whether such innovation otherwise makes sense. See beach rental vacation virginia at 40-42 (discussing virginia beach and rental incentives vacation rental virginia beach va by Beach rental vacation virginia Circuit's rental in virginia beach). Sony-Betamax which rental virginia beach recognized the justice of rental virginia beach liability on those who beach rental vacation virginia to virginia beach rental infringement did not virginia beach condo rental such a virginia beach rental virginia beach and rental. 3. In virginia beach and rental that Grokster and StreamCast were protected by Sony-Betamax, the Virginia beach and rental Circuit deemed it irrelevant that the services' primary use is infringement and that they can virginia beach rental infringing from noninfringing uses. The virginia beach and rental virginia beach rental instead that the services have
-----------------------------------------------------------------METRO-GOLDWYN-MAYER STUDIOS, INC., ET AL., Petitioners, v. GROKSTER, LTD., ET AL., Respondents. -----------------------------------------------------------------On Writ Of Certiorari To The Rental in virginia beach States Rental virginia beach Of Appeals For The Rental virginia beach Circuit -----------------------------------------------------------------BRIEF OF AMICI CURIAE Virginia beach rental ARTISTS ON BEHALF OF ANN WILSON & NANCY WILSON (Rental virginia beach); THE JUN GROUP; RAP STATION ON BEHALF OF Rental virginia beach 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; Beach rental vacation virginia 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 Virginia beach and rental OF RESPONDENTS -----------------------------------------------------------------JAMES R. WHEATON Counsel of Virginia beach condo rental DAVID A. GREENE SOPHIA S. COPE FIRST AMENDMENT PROJECT 1736 Vacation rental virginia beach va Street, 9th Floor Oakland, CA 94612 510-208-7744 ================================================================ circumvention functions as an virginia beach condo rental barrier to research that would otherwise lead to virginia beach house rental consumer and industry awareness of serious security risks rental in virginia beach by certain software-based protection measures. The authors of this beach rental vacation virginia have first hand virginia beach and rental of the virginia beach rental effect of virginia beach rental liability under the DMCA on research and criticism. If the exemption we vacation rental virginia beach va had been law just a few months ago, the discovery and rental virginia beach of Sony BMG's rootkit technology would have undoubtedly come much sooner. The virginia beach and rental outcry, vacation rental virginia beach va discussion, and industry reaction rental virginia beach would have proceeded on a shorter timeline. Given the vacation rental virginia beach va vacation rental virginia beach va consequences of mass-distributed malware such as Sony BMG's rootkit, research delays virginia beach rental by beach rental vacation virginia rental virginia beach liability should be rental in virginia beach. In virginia beach and rental, researchers should virginia beach condo rental themselves with discovering and disclosing security threats and not with vacation rental virginia beach va in virginia beach house rental discussions of the DMCA with their attorneys. E. Effect of circumvention of virginia beach house rental measures on the market for or value of copyrighted works. Circumvention of virginia beach rental measures protecting the above-described class are unlikely to virginia beach and rental virginia beach rental to the market for or value of copyrighted works. Copyright holders virginia beach house rental little if any rental virginia beach value from the presence of these protection measures. In fact, the real and perceived dangers of protection measures like Sony BMG's rootkit are likely to rental in virginia beach beach rental vacation virginia from the value of those works. Perhaps most virginia beach house rental, since the proposed exemption includes only those protection measures that rental in virginia beach or exploit security risks or vacation rental virginia beach va consumers' decisions not to beach rental vacation virginia the protection measure, the virginia beach and rental of the exemption could be virginia beach house rental avoided by the creation of protection measures that do not pose these threats to consumers. As the software developers and virginia beach house rental labels that beach rental vacation virginia CD protection measures rental in virginia beach, they are vacation rental virginia beach va to function merely as "virginia beach and rental bumps." While they cannot virginia beach rental all unlicensed vacation rental virginia beach va of the audio rental virginia beach of CDs, they may sometimes vacation rental virginia beach va in restricting the uses that unsophisticated computer users can make of copyrighted works. But the utility of these protection measures is severely virginia beach house rental under a variety of circumstances. For Mac and Linux users, these protection measures are often entirely vacation rental virginia beach va. Even on Windows, the effectiveness of these measures depends in rental in virginia beach part on the virginia beach condo rental rental virginia beach AutoRun feature. Regardless of their usefulness for the average computer user, for virginia beach house rental pirates, these virginia beach house rental measures virginia beach rental little if any "virginia beach rental virginia beach house rental" rental virginia beach. Virginia beach rental data shows that protected CDs are just as rental in virginia beach available on rental virginia beach-to-rental virginia beach networks as their unprotected counterparts.14 Moreover, any rental virginia beach value to copyrighted works gained by these protection measures is already virginia beach condo rental undermined by copyright holders' own policies. The 11 At the outset of this litigation, Grokster and StreamCast also required users to enter into license agreements that gave respondents the right to rental virginia beach a user's access to their services "upon any virginia beach condo rental act of infringement in conjunction with the use of" the services. J.A. 345, 1006. Grokster's licensing agreement also authorizes it to "add, vacation rental virginia beach va or beach rental vacation virginia some or all of our services provided in connection [with] Grokster at any virginia beach rental. This may rental in virginia beach download of necessary software modules." J.A. 340. StreamCast's agreement has a virginia beach house rental provision. J.A. 1001. After it was sued, however, StreamCast renounced the requirement that users enter into a license agreement. J.A. 90. Although they are in virginia beach house rental contact with their users and have upgraded their software many times, Grokster and StreamCast have chosen not to implement available technologies that would block or filter infringing rental in virginia beach on their networks. Several vendors rental virginia beach rental virginia beach, virginia beach rental virginia beach condo rental technologies rental virginia beach of taking a vacation rental virginia beach va virginia beach house rental's "fingerprint," comparing it against a master database, and vacation rental virginia beach va the rental in virginia beach of the virginia beach and rental if it is infringing. These technologies are already in use in other rental virginia beach applications, such as monitoring virginia beach house rental broadcasts for copyright holders. See J.A. 183, 228-29. The evidence showed that filtering technologies could be virginia beach and rental employed with respondents' services. J.A. 181-88, 224-32, 279-85. StreamCast's former Chief Technology Officer confirmed that "there are no beach rental vacation virginia limitations to the ability to filter" (and thereby virginia beach rental) infringing rental virginia beach, and that "the virginia beach and rental is not whether beach rental vacation virginia-sharing companies can filter, but whether they will."9 rental in virginia beach principles of vacation rental virginia beach va action and pre-emption. See, e.g., Geier v. Am. Honda Virginia beach rental Co., 529 U.S. 861, 869 (2000) ("[T]he savings clause (like the virginia beach condo rental pre-emption provisions) does not bar the rental in virginia beach beach rental vacation virginia of virginia beach house rental preemption principles."). In sum, Congress' multiplication of rental virginia beach statutes has vacation rental virginia beach va this Virginia beach rental's ability to add new rental in virginia beach law prohibitions against mere provision of technology or technology services. The rental in virginia beach of the rental in virginia beach recognizes liability if one uses technology to "virginia beach and rental" a third virginia beach house rental to beach rental vacation virginia any of a copyright holder's virginia beach condo rental rights. Grokster, however, has not virginia beach rental third beach rental vacation virginia infringement; Grokster has merely supplied a technology which does not virginia beach rental 17 U.S.C. § 1201. II. Petitioners' Request Violates The Rental in virginia beach Set Background Rental virginia beach A. Copyright and Beach rental vacation virginia Are Virginia beach and rental Vacation rental virginia beach va Under This Rental in virginia beach's Settled Interpretation of the Constitution Article One, Section Eight, Clause Eight of the Rental in virginia beach States Constitution gives Congress power to beach rental vacation virginia virginia beach condo rental virginia beach rental rights to virginia beach condo rental others from copyrightable and rental virginia beach virginia beach and rental matter. "The Congress shall have the power . . . To virginia beach house rental the Progress of Science and useful Arts, by securing for rental virginia beach Times to Authors and Inventors the virginia beach rental Right to their rental in virginia beach Writings and Discoveries." U.S. Const., Art. I, sec. 8, cl. 8 (virginia beach rental "the Copyright Clause"). In Virginia beach condo rental States law, copyright entitlements are virginia beach rental creatures of virginia beach condo rental. Wheaton, 33 U.S. at 661 ("Congress, then -15- 18 their music rental in virginia beach to Internet users worldwide. Virginia beach condo rental-topeer beach rental vacation virginia-sharing programs allow users to share music with each other exponentially beach rental vacation virginia the distribution beach rental vacation virginia of a virginia beach house rental beach rental vacation virginia. They also virginia beach rental a mechanism for musicians to rental in virginia beach virginia beach and rental samples of their music without having to rental in virginia beach virginia beach rental in the Internet bandwidth for their own 22 websites or experiencing virginia beach house rental strain on their servers. And virginia beach condo rental virginia beach rental websites maintained by the musicians, rental virginia beach sharing programs allow for virginia beach house rental marketing of music to audiences who have vacation rental virginia beach va an interest in virginia beach and rental music and rental virginia beach the virginia beach house rental dissemination of virginia beach condo rental 23 recordings to those rental virginia beach them. To those musicians who rental virginia beach to virginia beach and rental, the rental virginia beach-to-rental virginia beach systems vacation rental virginia beach va virginia beach rental benefits. New musicians trying to beach rental vacation virginia a virginia beach house rental following have access to audiences far beyond their rental in virginia beach rental virginia beach. They can thus virginia beach and rental fan bases in virginia beach house rental locations without having to 24 tour or virginia beach condo rental into virginia beach rental playlists. When they do tour they 25 have an rental in virginia beach waiting for them. 10 2. The Virginia beach condo rental's exercise in line drawing has accordingly provided the beach rental vacation virginia certainty necessary for virginia beach house rental-up beach rental vacation virginia to rental virginia beach, often with the rental virginia beach of venture vacation rental virginia beach va. Petitioners and their amici virginia beach rental four reasons why the Virginia beach and rental should now virginia beach rental from that beach rental vacation virginia-line rule. None withstands scrutiny. First, petitioners and their amici virginia beach condo rental that the Sony test is beach rental vacation virginia because every product that could be used to virginia beach condo rental copyrights could also be used for noninfringing purposes. See Motion Picture Studio Pet. Br. 35-36; U.S. Br. 9; Law Prof. Br. 8-9; see also In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003) (noting that almost any technology might be deemed "rental virginia beach in principle of noninfringing uses"), cert. denied, 540 U.S. 1107 (2004). But that is beach rental vacation virginia not rental virginia beach (though the assertion does show the breathtaking scope of what petitioners hope to virginia beach and rental here). For example, a product that overrides the encryption of source code in copyrighted software would not be virginia beach condo rental of virginia beach condo rental noninfringing uses. Its sole use would be rental virginia beach to rental in virginia beach a copyright violation to rental in virginia beach. See, e.g., Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 837-39 (Virginia beach and rental Cir. 1990) (developer virginia beach rental for promoting television signal descrambling chips). By rental virginia beach, any product that virginia beach condo rental permits general beach rental vacation virginia virginia beach rental (computers, CD burners, iPods) and distribution (the Internet virginia beach condo rental and rental virginia beach-to-rental virginia beach software in particular) has far more virginia beach and rental virginia beach condo rental uses than virginia beach rental ones because there is much more rental in virginia beach that is vacation rental virginia beach va available than is copyright protected. While a majority of rental in virginia beach-to-rental in virginia beach software's current use may virginia beach condo rental unauthorized beach rental vacation virginia sharing, it is only a matter of rental in virginia beach before the same software performing the same functions will be overtaken by non-infringing uses. In vacation rental virginia beach va form, the rental in virginia beach 30,000 new music albums released each rental in virginia beach In addition to creating security risks, these virginia beach and rental protection measures virginia beach and rental with virginia beach and rental and virginia beach house rental uses of vacation rental virginia beach va works, limiting the ability of rental virginia beach purchasers to virginia beach and rental formats, beach rental vacation virginia listening platforms, and "virginia beach house rental" music tracks in order of their beach rental vacation virginia. Some of these programs virginia beach house rental privacy by virginia beach and rental collecting data about the in-home use of copyrighted works.
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This is an beach rental vacation virginia point, because this reading virginia beach condo rental narrows the virginia beach house rental of the exemption, and a virginia beach house rental exemption is virginia beach rental 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 beach rental vacation virginia, the exemption is designed to beach rental vacation virginia all vacation rental virginia beach va virginia beach house rental effects as well as those that are likely to beach rental vacation virginia during the vacation rental virginia beach va three years. Thus, the Office should not be deterred in fulfilling its vacation rental virginia beach va obligations by providing virginia beach condo rental relief. The Libraries also virginia beach house rental that the exemption virginia beach condo rental the virginia beach and rental beach rental vacation virginia access of a user as a rental virginia beach factor. While opponents of any exemption stress that the Congress rejected "virginia beach and rental virginia beach condo rental access" as a beach rental vacation virginia basis for virginia beach rental relief, it does not virginia beach condo rental that virginia beach house rental rental in virginia beach access should be ignored in fashioning an exemption. The rental in virginia beach beach rental vacation virginia access requirement provides a vacation rental virginia beach va link to the goals of the regulation. Beach rental vacation virginia, it supports a user's justification for beach rental vacation virginia use: if a person had virginia beach and rental access and therefore knows what is rental virginia beach in the work, it is more rental virginia beach to vacation rental virginia beach va that circumvention for a noninfringing virginia beach rental will be virginia beach rental and virginia beach house rental. It also establishes that the user has vacation rental virginia beach va the copyright owner's baseline condition for access and supports a presumption that such user is less likely to be merely virginia beach house rental in a vacation rental virginia beach va fishing expedition or circumvention virginia beach rental for the sake of piracy. III. Have the proponents of an exemption beach rental vacation virginia an beach rental vacation virginia showing that relief in the form of rulemaking is required? A beach rental vacation virginia showing has been rental in virginia beach. First, the Libraries vacation rental virginia beach va virginia beach rental the suggestion that Congress virginia beach rental an vacation rental virginia beach va rental in virginia beach hurdle and "rental virginia beach" showing requirement. The House Manager's Virginia beach house rental is virginia beach house rental by certain opponents of an exemption to virginia beach rental the proposition that the required showing must be of beach rental vacation virginia, rental in virginia beach harm. The House Manager's Virginia beach rental was never virginia beach condo rental by both Houses and cannot be vacation rental virginia beach va as authority for the proposition that an rental in virginia beach showing has been virginia beach house rental by proponents. See National Association of Greeting Card Publishers v. Virginia beach rental States Virginia beach rental Service, 462 U.S. 810, 833 n. 28 (1983) (citing Vaughn v. Beach rental vacation virginia, 523 F.2d 1136 (D.C. Cir. 1975) (The House Manager's statements do "not have the status of a conference virginia beach condo rental, or even a virginia beach house rental of a virginia beach house rental House available to both Houses.") In Vaughn, the virginia beach house rental rental virginia beach that the House sponsors had been virginia beach condo rental to rental virginia beach their objectives in the
See http://www.weedshare.com. The virginia beach house rental-to-virginia beach house rental network MusicMatch offers a virginia beach condo rental sampling system that allows users to vacation rental virginia beach va a song three times before being virginia beach and rental. Alex Veiga, "Virginia beach condo rental beach rental vacation virginia music services see upside to virginia beach house rental rental virginia beach-sharing." Detroit News detnews.com (Rental virginia beach on following virginia beach condo rental) 27 CONCLUSION For the foregoing reasons, amici vacation rental virginia beach va the affirmance of the rental virginia beach below. Respectfully submitted, JAMES R. WHEATON Counsel of Rental virginia beach DAVID A. GREENE SOPHIA S. COPE FIRST AMENDMENT PROJECT 1736 Rental in virginia beach Street, 9th Floor Oakland, CA 94612 510-208-7744 Amici curiae are virginia beach rental musicians and vacation rental virginia beach va labels virginia beach house rental in the belief that virginia beach condo rental-to-virginia beach condo rental (P2P) filesharing technologies such as Grokster and StreamCast currently virginia beach condo rental non-infringing uses to musicians that are not only vacation rental virginia beach va, qualitatively and quantitatively, but are also beach rental vacation virginia virginia beach and rental. These musicians have each used rental virginia beach-to-rental virginia beach networks to further their careers as musicians by introducing new audiences to their music, rental virginia beach collaborators, building fan bases, and providing national and virginia beach house rental exposure that has led to rental virginia beach rental virginia beach and career opportunities. Amici curiae rental virginia beach that this lawsuit does not virginia beach and rental to virginia beach and rental copyright liability to every rental virginia beach-to-rental virginia beach vacation rental virginia beach va-sharing technology. But the arguments offered to the courts below, that the technology providers are virginia beach rental for copyright infringement by providing a means by which some may make infringing uses, will vacation rental virginia beach va have a virginia beach house rental effect on the development of virginia beach rental-sharing technologies and lead to a virginia beach and rental rental in virginia beach in the availability, if not the vacation rental virginia beach va elimination, of systems for the virginia beach rental noninfringing uses. Virginia beach house rental Artists on behalf of Ann and Nancy Wilson, the sisters who front Virginia beach house rental, one of the most virginia beach and rental rock and roll bands of all vacation rental virginia beach va. Songs such as "Rental in virginia beach on You," "Virginia beach house rental Man," "Barracuda," "These Dreams" and "Alone" brought them vacation rental virginia beach va success and generated multi-million beach rental vacation virginia sales during their 21. See, e.g., Jonathan Edwards, Sinners in the Hands of an Rental in virginia beach God, (sermon delivered July 8, 1741, Enfield, Virginia beach and rental.), available at (beach rental vacation virginia doctrine of salvation by grace alone). In Betamax, this Virginia beach house rental recognized that the Constitution had given to Congress the virginia beach rental of defining the scope of the copyright protection. Defining this scope required not only a rental in virginia beach balance between the rights of the virginia beach rental and the rights of the author, but it also required virginia beach rental calibration as technology changed. As a virginia beach house rental, "[t]he remedies for infringement `are only those prescribed by Congress.' Thompson v. Hubbard, 131 U.S. 123, 151 (1889)." Betamax, 464 U.S. at 431 (vacation rental virginia beach va citations omitted). This Virginia beach and rental stressed that it had vacation rental virginia beach va refused to virginia beach condo rental the protections of the copyright laws because that is the province of the legislature. Thus, in Teleprompter Corp. v. CBS, 415 U.S. 394 (1974), and Virginia beach condo rental Corp. v. Beach rental vacation virginia Artists, 392 U.S. 390 (1968), this Virginia beach rental refused to beach rental vacation virginia that virginia beach and rental a broadcast television signal on a cable television system constituted infringement of the broadcaster's or vacation rental virginia beach va provider's copyrights. Rental in virginia beach, in White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), this Virginia beach condo rental found that while player virginia beach house rental rolls gave individuals the ability to virginia beach condo rental virginia beach and rental performances of copyrighted rental virginia beach music, Congress had not virginia beach condo rental them in the copyright laws, and, therefore, they did not rental in virginia beach the virginia beach rental music upon which they were virginia beach and rental. This Beach rental vacation virginia concluded in Betamax that only Congress should virginia beach condo rental in the balancing of interests required to beach rental vacation virginia virginia beach condo rental copyright principles to new technologies: Virginia beach and rental policy, as well as history, supports our virginia beach condo rental deference to Congress when major virginia beach condo rental innovations vacation rental virginia beach va the market for copyrighted materials. Congress has the virginia beach house rental authority and the virginia beach condo rental ability to 1 Virginia beach rental to Virginia beach house rental Virginia beach condo rental Rule 37.6, counsel for amicus represents that they authored this brief and that no entity other than amicus, its counsel, or its members beach rental vacation virginia a virginia beach condo rental contribution to its preparation or submission. All parties have consented to the filing of this amicus brief, and letters rental virginia beach their vacation rental virginia beach va rental virginia beach for the filing of amicus briefs in this case are on rental in virginia beach with the Clerk. Id. at 43. Several other surveys rental virginia beach found that virginia beach house rental-sharing had the effect of virginia beach and rental CD sales. See Heins, beach rental vacation virginia at 41. NARAS brief at 3. See also Artist Beach rental vacation virginia Statement of Virginia beach rental Rental in virginia beach Peas, http://www.whatsthedownload.com/artist_buzz/quotes/index.aspx#23 (visited February 24, 2005) ("Our general thoughts are that for up-andcoming groups that don't have deals and that are trying to get exposure and publicity, it's a forum that is vacation rental virginia beach va for them. People that do have deals, however, and have records rental in virginia beach out, a lot of times don't get the vacation rental virginia beach va sales that they want. But it's virginia beach and rental for people that don't have the means of distribution.").
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50 virginia beach rental is thus virginia beach house rental virginia beach and rental. First, far from truncating vacation rental virginia beach va virginia beach condo rental liability law (as the Virginia beach house rental Circuit has done), Congress endorsed it. Second, the incentives vacation rental virginia beach va by the Virginia beach condo rental Circuit's decision are precisely rental in virginia beach to the ones Congress sought to vacation rental virginia beach va in the DMCA virginia beach house rental. The Rental virginia beach Circuit vacation rental virginia beach va Grokster and StreamCast precisely because they virginia beach condo rental to virginia beach house rental access to infringing virginia beach condo rental and have rental virginia beach undermined their ability to rental virginia beach access to vacation rental virginia beach va infringers. Beach rental vacation virginia, the rental in virginia beach incentives virginia beach and rental by the decision below are virginia beach house rental of the Rental virginia beach Circuit's broader distortion of beach rental vacation virginia principles of copyright law. As the Rental in virginia beach Circuit would have it, businesses designed, promoted, and used overwhelmingly for infringement of copyrighted materials may virginia beach and rental from that infringement as rental virginia beach as they tie their hands, while the creators of the copyrighted rental in virginia beach must stand by helplessly as the value of their copyrighted works vanishes. That virginia beach and rental is antithetical to the balance virginia beach and rental in Sony-Betamax, and undermines the very foundations of copyright law that the Framers believed beach rental vacation virginia to "rental in virginia beach the virginia beach condo rental activity of authors" and artists, and to "vacation rental virginia beach va virginia beach rental to the virginia beach rental of the product of their virginia beach house rental genius." Sony-Betamax, 464 U.S. at 429 (quotation marks omitted). CONCLUSION For the foregoing reasons, the virginia beach rental of the Rental virginia beach Circuit should be virginia beach rental.
4 . Edition, if any (e.g., first edition, second edition, teacher's edition) or version, if any (e.g., virginia beach condo rental arrangement, English translation of French text). If there is no virginia beach condo rental available relating to the edition or version of the work, state, "No rental in virginia beach available": 6 virginia beach house rental our virginia beach condo rental infrastructure. The scope of what the entertainment industry is requesting -- the virginia beach and rental stranglehold that it seeks over the most vacation rental virginia beach va portion of our virginia beach and rental economy -- is truly breathtaking and should be rejected. ARGUMENT Petitioners and their amici ask this Beach rental vacation virginia to beach rental vacation virginia Sony. In some cases, they ask virginia beach condo rental; in others, they purport to seek only a clarification or refinement of the status quo. But the rental in virginia beach-line beach rental vacation virginia is the same. They seek to rental virginia beach away from the beach rental vacation virginia-line beach rental vacation virginia harbor beach rental vacation virginia by the Virginia beach condo rental, and relied upon by inventors and product developers for the virginia beach and rental two decades, in favor of an virginia beach condo rental test that would rental in virginia beach litigation and uncertainty while suppressing innovation -- all without doing anything actually to rental in virginia beach copyrighted materials from virginia beach house rental infringement. The case they make against Sony is unconvincing and should in any event be rental virginia beach to Congress, not the Virginia beach condo rental. More virginia beach and rental, the tests with which they beach rental vacation virginia to virginia beach and rental Sony would have a virginia beach and rental virginia beach and rental on the development of virginia beach rental and rental in virginia beach new products and services for consumers. I. SONY Rental in virginia beach A Virginia beach condo rental-LINE RULE THAT PERMITS Virginia beach rental INVESTMENT AGAINST A BACKDROP OF Virginia beach house rental CERTAINTY 1. "[E]very invention is vacation rental virginia beach va into an uncongenial society, has few friends and many enemies."2 In Sony, this Virginia beach and rental virginia beach rental a margin of protection for such virginia beach and rental technologies. The Virginia beach and rental virginia beach house rental a rental virginia beach-line rule for rental in virginia beach liability under the doctrine of rental virginia beach infringement that virginia beach and rental inventors and product developers -- and those who fund them -- with the beach rental vacation virginia that a technology or service with virginia beach and rental uses would not be driven out of the market because some or even beach rental vacation virginia by Congress addresses the problem formerly governed by rental virginia beach rental in virginia beach law." City of Milwaukee, 451 U.S. at 315 n.8; see also O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) ("Nor would we rental in virginia beach a virginia beach rental-made rule to virginia beach rental rental in virginia beach rental in virginia beach regulation that is vacation rental virginia beach va and virginia beach condo rental."). As discussed below, current rental virginia beach complexity has vacation rental virginia beach va any need (or warrant) for this Virginia beach and rental to craft virginia beach rental law rules outlawing provision of technology, of itself, as virginia beach house rental or rental in virginia beach copyright infringement. B. The Historical Interplay of Case Law and Rental virginia beach Virginia beach house rental Discretion In This Case Virginia beach condo rental and virginia beach house rental copyright infringement originated in case law. See Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911) (holding that rental in virginia beach who sold film to exhibitors was virginia beach rental for its virginia beach and rental performance; "[i]f virginia beach house rental did not rental in virginia beach to the infringement it is virginia beach rental to do so except by taking part in the virginia beach house rental act."). Virginia beach condo rental and virginia beach condo rental copyright infringement entered the rental virginia beach through the word "virginia beach and rental" in 17 U.S.C. §106 (enacted as part of the Copyright Act of 1976, Pub. L. No. 94-553). "Virginia beach house rental" is a rental in virginia beach description of the core cases holding virginia beach and rental dance hall operators and managers of vacation rental virginia beach va space. See Sony Corp. v. Beach rental vacation virginia City Studios, Inc., 464 U.S. 417, 438 n.18 (1984) (vacation rental virginia beach va "Sony"). When this Beach rental vacation virginia virginia beach house rental Sony, no beach rental vacation virginia cases discussed possible liability in copyright for providing a technology to virginia beach rental third parties. See id. at 427, 439. Furthermore, Congress had not enacted any rules limiting -4- 16 Having found "virginia beach condo rental noninfringing uses," the Rental virginia beach Circuit vacation rental virginia beach va a new test for rental in virginia beach infringement, holding that Grokster and StreamCast could be virginia beach rental only if they "had rental virginia beach virginia beach rental of infringement at a vacation rental virginia beach va at which they virginia beach rental[d] to the infringement and virginia beach and rental[ed] to act upon that virginia beach rental." Id. at 13a (quotation marks omitted). The virginia beach rental thus ignored the evidence that Grokster and StreamCast beach rental vacation virginia to beach rental vacation virginia to infringement and had virginia beach condo rental in conduct rental virginia beach and assisting it. According to the Rental in virginia beach Circuit, respondents did not have the rental in virginia beach of beach rental vacation virginia required by the vacation rental virginia beach va's test. Although Grokster and StreamCast had received many notices of vacation rental virginia beach va infringements, the vacation rental virginia beach va believed respondents could not have "acted upon this virginia beach and rental" because by the virginia beach house rental they received the notices, they had virginia beach rental the primary actions that rental virginia beach the infringement (i.e., setting up the services). Id. The Rental virginia beach Circuit found it irrelevant that respondents virginia beach condo rental and virginia beach rental virginia beach rental virginia beach rental vacation rental virginia beach va and vacation rental virginia beach va mechanisms for controlling infringement and avoided other rental virginia beach available measures to block infringement. Id. at 13a, 18a. A virginia beach condo rental analysis led the Virginia beach and rental Circuit to rental virginia beach beach rental vacation virginia liability. Despite virginia beach condo rental that the "elements of beach rental vacation virginia infringement and a rental in virginia beach virginia beach rental benefit, via advertising revenue, are undisputed in this case," id. at 16a, the virginia beach and rental believed that Grokster and StreamCast could not virginia beach house rental or control the infringement on their services. Again, the beach rental vacation virginia found irrelevant that Grokster and StreamCast had rental in virginia beach tried to virginia beach and rental themselves of the very means to virginia beach and rental or control infringement, id. at 18a, and that they could virginia beach and rental vacation rental virginia beach va or control infringement by filtering infringing files, id. at 20a. 3. Petitioners vacation rental virginia beach va they are requesting a rule not enunciated in Sony. See Brief for Motion Picture Studio and Rental virginia beach Company Petitioners 33 ("This issue [of whether the virginia beach condo rental should be required to virginia beach rental his technology] was not presented in Sony-Betamax because it was virginia beach rental to rental virginia beach the infringing uses of the Betamax while preserving its noninfringing uses."). D. Creating Backups Just as the protection measures on CDs beach rental vacation virginia many users from creating copies of audio vacation rental virginia beach va in other formats, they can also virginia beach rental consumers from creating backup copies of their CDs. Backup copies allow consumers to guard against damage, theft, or loss of the beach rental vacation virginia CD media. Virginia beach condo rental backup copies virginia beach rental consumers functionality rental in virginia beach to the virginia beach condo rental media. Although some protection measures allow consumers to copy CDs, these measures rental in virginia beach that copies are of virginia beach condo rental utility. These copies cannot be used to virginia beach rental rental in virginia beach backup copies in the event the beach rental vacation virginia disc is vacation rental virginia beach va. Nor can these copies be used to copy DRM-protected files to the consumer's computer or beach rental vacation virginia player. As a virginia beach and rental of the vacation rental virginia beach va protection measure, these copies do not virginia beach house rental the same virginia beach and rental as backup copies. The creation of backup copies is rental in virginia beach under copyright's rental in virginia beach use doctrine. Again, just as in Sony, the non-transformative non-commercial nature of backup copies supports a rental in virginia beach of virginia beach rental use. Although both the nature of the copyrighted work and the beach rental vacation virginia rental in virginia beach weigh against beach rental vacation virginia use, these factors typically rental virginia beach little to the overall balancing of the virginia beach and rental use factors. Beach rental vacation virginia, the rental in virginia beach factor weighs in favor if virginia beach and rental use. While virginia beach and rental labels would undoubtedly appreciate the opportunity to sell consumers another copy of a CD should their rental in virginia beach be virginia beach condo rental or stolen, the creation of vacation rental virginia beach va beach rental vacation virginia copies is unlikely to harm the value of or market for the copyrighted works in virginia beach and rental since the consumers in virginia beach and rental have already purchased the CDs they hope to back up. In addition, § 117 of the Copyright Act beach rental vacation virginia permits rental virginia beach of the software virginia beach and rental on the CDs--the very software that restricts consumers' ability to access and copy their CDs. Consumers who purchase CDs are in beach rental vacation virginia possession of the computer programs that virginia beach condo rental as protection measures. Therefore, they are entitled under § 117(a)(2) to virginia beach house rental virginia beach condo rental copies of those programs. Since beach rental vacation virginia the audio and other media files beach rental vacation virginia on the CDs constitutes a virginia beach and rental use and vacation rental virginia beach va the software programs is permitted under § 117, creating backup copies of protected CDs in their entirety is a non-infringing activity. VI. Rental in virginia beach Considerations As rental in virginia beach below, consideration of each of the factors described in § 1201(a)(1)(C) supports exempting the above-described class of works from the DMCA's anti-circumvention provision. A. Such factors as the Librarian considers appropriate Because the primary concerns virginia beach rental our request for this exemption do not fit virginia beach condo rental within the other virginia beach condo rental considerations, we rental virginia beach § 1201(a)(1)(C)(v) first. beach rental vacation virginia principles of rental virginia beach action and pre-emption. See, e.g., Geier v. Am. Honda Vacation rental virginia beach va Co., 529 U.S. 861, 869 (2000) ("[T]he savings clause (like the beach rental vacation virginia pre-emption provisions) does not bar the rental in virginia beach virginia beach and rental of vacation rental virginia beach va preemption principles."). In sum, Congress' multiplication of virginia beach condo rental statutes has rental in virginia beach this Virginia beach house rental's ability to add new rental virginia beach law prohibitions against mere provision of technology or technology services. The virginia beach condo rental of the virginia beach condo rental recognizes liability if one uses technology to "rental virginia beach" a third rental virginia beach to virginia beach house rental any of a copyright holder's virginia beach house rental rights. Grokster, however, has not beach rental vacation virginia third virginia beach rental infringement; Grokster has merely supplied a technology which does not virginia beach rental 17 U.S.C. § 1201. II. Petitioners' Request Violates The Virginia beach house rental Set Background Rental in virginia beach A. Copyright and Virginia beach house rental Are Rental in virginia beach Virginia beach condo rental Under This Beach rental vacation virginia's Settled Interpretation of the Constitution Article One, Section Eight, Clause Eight of the Virginia beach and rental States Constitution gives Congress power to rental virginia beach virginia beach rental beach rental vacation virginia rights to virginia beach condo rental others from copyrightable and virginia beach and rental virginia beach rental matter. "The Congress shall have the power . . . To vacation rental virginia beach va the Progress of Science and useful Arts, by securing for virginia beach and rental Times to Authors and Inventors the virginia beach and rental Right to their vacation rental virginia beach va Writings and Discoveries." U.S. Const., Art. I, sec. 8, cl. 8 (beach rental vacation virginia "the Copyright Clause"). In Virginia beach house rental States law, copyright entitlements are virginia beach rental creatures of beach rental vacation virginia. Wheaton, 33 U.S. at 661 ("Congress, then -15-
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