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1 BAKER MARQUART LLP 2 Jaime Marquart (Bar No. 200344) jmarquart@bakermarquart.com 3 Ryan Baker (Bar No. 214036) 4 rbaker@bakermarquart.com Christian Anstett (Bar No. 240179) 5 canstett@bakermarquart.com 6 10990 Wilshire Blvd., Fourth Floor Los Angeles, California 90024 7 Telephone: (424) 652-7800 8 Facsimile: (424) 652-7850 9 Attorneys for All Plaintiffs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUGAR HILL MUSIC, SOLID PRODUCTIONS, STEVEN BATIZ, TONY BELL, DETRON BENDROSS, DERRICK BRAXTON, REGINALD BROOKS, ELIJAH BROWN, HORACE BROWN, OSCAR BROWN, LUTHER CAMPBELL, JONATHAN CARLTON, SOLOMON CONNER, DAYQUAN DAVIS, DOUGLAS DAVIS, KAREEM DAVIS, SOLAMIN DAVIS, EMMANUEL RAMONE DEANDA, DREW CARTER, NACOLBIE EDWARDS, VANCITO EDWARDS JOHN FLETCHER, WILLIE FINCH, ISAAC FREEMAN, JR., DARRYL GIBSON, JALIL HUTCHINS, EMANON JOHNSON, KEITH CASE NO. CV 11-9437-DSF (JCx) PLAINTIFFS REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION [Filed concurrently with: DECLARATION OF CHRISTIAN ANSTETT] Hearing Date: February 25, 2013 Time: 1:30p.m. Judge: Hon. Dale S. Fischer Courtroom 840 Trial Date: TBD UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

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JONES, ORAN JUICE JONES, TARSHA JONES, NAILAH LAMEES, DANA MCCIEESE, BARRY MOODY, JEFF REDD, QUAME RILEY, ANTHONY ROBINSON, NICHOLAS SANCHEZ, JONATHAN SHINHOSTER, DIAMOND SMITH, REMINISCE SMITH, GERALD SPENCE, CHRIS STOKES, IRENE STOKES, JUANITA STOKES, WILLIAM TENNYSON AND THE TENNYSON ESTATE, CARL THOMAS, JEFF THOMKINS, RONDELL TURNER, RICKY WALTERS, KEVIN WILLIAMS, YOLANDA WHITAKE, JOSEPH WILLIAMS, RAHEEM WILLIAMS, CASE WOODWARD, ATTRELL AND JARRETT CORDES, MITCHELL GRAHAM Plaintiffs, vs.

CBS INTERACTIVE INC., CNET 16 NETWORKS, INC. 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 III. 23 24 25 26 27 28 C. D. E. F. G. 2. 3. B. 2. 1. I. II.

TABLE OF CONTENTS INTRODUCTION ............................................................................................. 1 PLAINTIFFS ARE HIGHLY LIKELY TO PROVE INDUCEMENT ........... 1 A. Plaintiffs Own the Works At Issue ......................................................... 1 1. Plaintiffs Evidence of Ownership ............................................... 2 a. b. The Fresh Works ................................................................ 3 The Hutchins Works ........................................................... 3

CBSI Offers No Conflicting Evidence ......................................... 4

Plaintiffs Works Have Been Directly Infringed .................................... 4 Plaintiffs Offer Direct And Circumstantial Infringement Evidence........................................................................................ 4 Plaintiffs Are Not Required To Trace Infringement ................. 5 Plaintiffs Are Highly Likely To Prove Intent To Induce ............. 8 a. b. c. All Of Plaintiffs Inducement Evidence is Relevant .......... 8 Plaintiffs Evidence Shows Intent to Induce ...................... 9 CBSI Is Liable For Infringement ..................................... 10

Plaintiffs Have Shown Irreparable Harm.............................................. 12 Plaintiffs Motion Is Timely ................................................................. 12 The Balance of Equities Favors Plaintiffs ............................................ 13 The Proposed Injunction Serves The Public Interest ............................ 14 The Proposed Injunction Is Neither Vague Nor Overbroad ................. 14

CONCLUSION ............................................................................................... 15

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TABLE OF AUTHORITIES

Page(s) 3 FEDERAL CASES 4 Apple Barrel Productions, Inc. v. Beard, 5 730 F.2d 384 (5th Cir. 1984) ................................................................................ 2 6 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) ............................................................................. 14 7 8 Arista Records LLC v. Lime Group LLC, 784 F.Supp.2d 398 (S.D.N.Y. 2011) (LimeWire) .................................... passim 9 10 Arista Records LLC v. Lime Wire LLC, Case No. 06-CV-05396 (KMW) (S.D.N.Y. 2006) (the LimeWire 11 Injunction) ......................................................................................................... 12 12 Columbia Pictures Industries Inc. v. Fung, 13 2009 WL 6355911 (C.D. Cal 2009) ........................................................... 4, 7, 11 14 CyberMedia, Inc. v. Symantec Corp., 19 F.Supp.2d 1070 (N.D. Cal. 1998).............................................................. 2, 12 15 16 Havens v. Time Warner, Inc., 896 F.Supp.2d 1141 (S.D.N.Y. 1995) .................................................................. 2 17 18 Lisa Frank, Inc. v. Impact Intern., Inc., 799 F.Supp.2d 980 (D. Ariz. 1992) .................................................................... 13 19 20 MDY Indus., LLC v. Blizzard Entmt Inc., 629 F.3d 928 (9th Cir. 2011) ................................................................................ 5 21 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 22 454 F.Supp.2d 966 (C.D. Cal. 2006) (MGM III) ....................................... 7, 11 23 Metro-Goldwyn-Meyer Studios, Inc. v. Grokster, Ltd. 24 518 F. Supp. 2d 1197 (2007) (MGM IV) ....................................... 9, 12, 13, 14 25 MGM v. Grokster, 545 U.S. 913 (2005) (Grokster) ............................................................... passim 26 27 MGM v. Grokster, Ltd., 259 F.Supp.2d 1029 (C.D. Cal. 2003) (MGM I)............................................... 6 28 i
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1 Peker v. Fader, 164 Fed. Appx. 49, 2006 WL 172204 (2nd Cir., Jan. 24, 2006)...................... 2, 3 2 3 Poon v. Roomorama LLC, 2009 WL 3762115 (S.D.N.Y. November 10, 2009) ............................................ 2 4 5 Warner Bros. Ent. Inc. v. WTV Systems, Inc., 824 F.Supp.2d 1003 (C.D. Cal. 2011) ................................................................ 14 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii
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I.

INTRODUCTION

CBS Interactive Inc.s (CBSIs) opposition to Plaintiffs motion for a

3 preliminary injunction ignores dispositive law and fact, in an attempt to divert the 4 Courts attention with technical evidentiary arguments and factual 5 misrepresentations. Importantly, CBSIs arguments overlook the applicable legal 6 standard for a preliminary injunction. Plaintiffs need not finally resolve every 7 hypothetical evidentiary issue to obtain injunctive relief. Plaintiffs need only 8 establish a likelihood of success on the merits. 9 Plaintiffs copyrighted works can easily be infringed with free software

10 available for download from CBSIs websites. CBSI does not deny this fact, nor 11 could it plausibly do so because Plaintiffs have lodged actual copyrighted music 12 files obtained with CBSI-sourced software with the Court. Plaintiffs have also 13 already marshaled significant and substantial evidence of CBSIs inducement the 14 exact kind of evidence alleged in Plaintiffs first amended complaint (the FAC) 15 and discussed in this Courts opinion denying CBSIs motion to dismiss. Based on 16 the competent and admissible evidence before this Court, Plaintiffs are likely to 17 succeed in proving inducement liability. A preliminary injunction should issue. 18 19 20 A. 21 II. PLAINTIFFS ARE HIGHLY LIKELY TO PROVE INDUCEMENT

Plaintiffs Own The Works At Issue Plaintiffs own copyright interests in these songs and have supplied

22 information and documents evidencing ownership to CBSI.1 Instead of providing 23 24 Plaintiffs supplied these documents in connection with their application for 25 preliminary injunction and not in response to discovery requests CBSI served prior 26 to Plaintiffs motion. (Declaration of Christian Anstett (the Anstett Decl.) 3). CBSI has not moved to compel any discovery response and did not move for 27 expedited discovery in connection with the preliminary injunction. Id. 28
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1 any admissible evidence related to Plaintiffs ownership, CBSI raises only 2 hypothetical issues. But CBSIs speculation does not raise doubt as to ownership in 3 light of the ownership evidence Plaintiffs have already provided. 4 5 1. Plaintiffs Evidence Of Ownership

To obtain a preliminary injunction based upon copyright infringement,

6 Plaintiffs need only show a likelihood of proving ownership of the copyrighted 7 works. CyberMedia, Inc. v. Symantec Corp., 19 F.Supp.2d 1070 (N.D. Cal. 1998) 8 (holding that plaintiffs need not prove absence of a factual dispute to show 9 likelihood of proving ownership). Plaintiffs need not present evidence of a perfect, 10 complete chain of title. Id. The law does not require certificates of registration; nor 11 does it require specific ownership evidence (rather, ownership may be established 12 through a variety of means) or forbid amendments to Form AO 121 to correct 13 clerical or other errors. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 14 (5th Cir. 1984) (to bring suit for copyright infringement, it is not necessary to prove 15 possession of a registration certificate); Havens v. Time Warner, Inc., 896 16 F.Supp.2d 141, 142-43 (S.D.N.Y. 1995).2 Plaintiffs have provided, among other 17 things, U.S. Copyright Office website printouts showing they own the relevant 18 works. No court has found such evidence inadequate.3 19 20 CBSIs citation to Peker v. Fader is misleading. 164 Fed. Appx. 49, 2006 WL 21 172204 (2d Cir., Jan. 24, 2006). There, the plaintiff moved for leave to amend Form 22 AO 121 on the ground that the form misidentified the title of the work. Id. at *1. Although the court initially denied a motion to amend, the court later permitted the 23 amendments requested by plaintiff. (Anstett Decl., Ex. D). 3 24 The only case cited by CBSI for this dubious proposition, Poon v. Roomorama, LLC, does not hold that printouts from the Copyright Office are inadmissible 25 evidence of ownership. 2009 WL 3762115 at *6 (S.D.N.Y., Nov. 10, 2009). In that 26 case, the plaintiff submitted an untitled printout of unknown origin (not from the Copyright Office) that did not describe the purportedly copyrighted materials 27 beyond the words Computer File. Id. 28 -2REPLY ISO MOTION FOR PRELIMINARY INJUNCTION
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(a)

The Fresh Works

Douglas Davis holds copyright interests in each of the Fresh Works. He is

3 named as the copyright claimant for the album Doug Es Best in the Copyright 4 Office printout submitted to the Court. (Anstett Declaration in support of Motion 5 for Preliminary Injunction, Nov. 9, 2012 (2012 Anstett Decl.), Ex. BB). That 6 album lists the song Chill Will: Cuttin It Up, one of the Fresh Works, in 7 Plaintiffs motion. Id. Entertaining Music, an entity wholly owned by Mr. Davis, 8 holds the copyright interests in Play this Only at Night, All the Way to Heaven, 9 Leave it up to the Cut Professor, and Lovin Every Minute of it; The Cycle 10 Ride. Id. Plaintiffs have provided CBSI with documentation establishing Mr. 11 Davis ownership of Entertaining Music. (Declaration of Christian Anstett In 12 Support of Plaintiffs Reply (the Anstett Decl.), Ex. B). Mr. Davis also holds 13 copyright interests in The Show. Those interests were assigned to him from the 14 entity listed in the copyright right forms as the original copyright claimant (Danica 15 Music). Id. The possibility of additional evidence of ownership of these works is 16 irrelevant. Plaintiffs have made the necessary showing regarding the Fresh Works. 17 18 (b) The Hutchins Works

Jalil Hutchins has a valid copyright interest in the Hutchins Works. All of

19 those works are listed on the form AO 121 Plaintiffs submitted to the Court. 20 (Anstett Decl. 4). However, due to a clerical error, the only author listed for those 21 songs is co-plaintiff Ectasy, another member of Mr. Hutchins music group 22 Whodini. Ectasy also possesses a valid copyright interest in the Hutchins Works. 23 The omission of Mr. Hutchins name on form AO 121 does not help CBSI, and that 24 omission could be easily remedied in any event. See, e.g., Peker v. Fader, 164 Fed. 25 Appx. 49, 2006 WL 172204 (2d Cir., Jan. 24, 2006). 26 Twelve of the printouts submitted in connection with the Hutchins Works list

27 Mr. Hutchins as author for the Hutchins Works. Mr. Hutchins and the other 28 -3REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

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1 members of Whodini received a copyright interest in the Hutchins Works through an 2 assignment agreement with the record company listed as the registered copyright 3 claimant with the Copyright Office. (Anstett Decl. 4). Further, Mr. Hutchins has 4 received royalty payments from the royalty clearing-house ASCAP for 5 performances of the Hutchins Works around the world. Id. Plaintiffs produced 6 printouts from ASCAPs website evidencing Mr. Hutchins royalty interest in the 7 Hutchins Works. Id. Plaintiffs are highly likely to prove Mr. Hutchins owns the 8 Hutchins Works. 9 10 2. CBSI Offers No Conflicting Evidence

CBSI has not come forward with any evidence contradicting Plaintiffs

11 ownership claims; instead, CBSI bases its argument on a series of hypothetical 12 concerns. All evidence before the Court is consistent with Messr. Davis and 13 Hutchins ownership of the relevant works. CBSIs contrary argument should be 14 rejected. 15 B. 16 17 Plaintiffs Works Have Been Directly Infringed 1. Plaintiffs Offer Direct And Circumstantial Infringement Evidence

Plaintiffs submitted admissible evidence of direct infringement. Plaintiffs

18 counsel downloaded torrent software in the United States from links on CBSIs 19 website. Counsel then used that software to open torrent files and download 20 Plaintiffs copyrighted songs.4 Plaintiffs lodged those digital music files with this 21 Court. Evidence of that nature was the basis of the Southern District of New Yorks 22 decision to permanently enjoin LimeWire. Arista Records LLC v. Lime Group LLC, 23 784 F.Supp.2d 398, 423 (S.D.N.Y. 2011) (LimeWire). 24 25 Downloading of copyrighted material from an IP address in the United States constitutes infringement. Columbia Pictures Industries Inc. v. Fung, 2009 WL 27 6355911 at *7 (C.D. Cal 2009). 28 26 -4REPLY ISO MOTION FOR PRELIMINARY INJUNCTION
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Tellingly, CBSI does not dispute that torrent software promoted on, and

2 accessible from, its websites can be used to download Plaintiffs copyrighted works 3 in the United States. CBSI should be enjoined from distributing such products. 4 CBSI provides no reason to discount the strong circumstantial evidence that

5 Plaintiffs files have been illegally traded on torrent networks popularized and 6 expanded by CBSIs distribution of torrent software. Download metrics on the 7 Pirate Bay website from which Plaintiffs obtained the torrent files provide 8 circumstantial evidence that these files have been traded illegally numerous times in 9 the past. (2012 Anstett Decl. 8, Ex. E; see also Anstett Decl. 16, Ex. K). CBSIs 10 expert opinion (even were it admissible) that the Pirate Bay metrics may be stale 11 does not help CBSI. If anything, it is highly likely that Plaintiffs songs have been 12 downloaded more times than indicated by the statistics. The fact that Plaintiffs 13 songs might be illegally available for free elsewhere on the Internet (or legally 14 licensed for Internet distribution) does not exculpate CBSI from liability for 15 infringement it induced on torrent networks. 16 17 2. Plaintiffs Are Not Required To Trace Infringement

In another desperate attempt to continue profiting from inducement, CBSI

18 invents an evidentiary standard that would require Plaintiffs to provide evidence 19 tracing specific acts of direct infringement of their songs to specific software 20 distributed from their websites. CBSI cites no authority for its novel tracing 21 theory, and, in fact, CBSIs argument contradicts the established file-sharing 22 doctrine articulated in Grokster and its progeny.5 MGM v. Grokster, 545 U.S. 913, 23 940-41 (2005) (Grokster) (discussing evidence of infringement on a gigantic 24 25 CBSI relies on MDY Indus., LLC v. Blizzard Entmt Inc., 629 F.3d 928 (9th Cir. 26 2011); however, that case is dissimilar because it concerns a single defendant who created software that played the plaintiffs online video game. 27 28 -5REPLY ISO MOTION FOR PRELIMINARY INJUNCTION
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1 scale that resulted in no serious issue as to adequacy of plaintiffs proof of direct 2 infringement). Where several entities are responsible for inducing infringement on 3 the same file-sharing network, each entity is jointly and severally liable for all 4 resulting infringement. LimeWire, 784 F.Supp.2d at 437 (all persons and 5 corporations who participate in, exercise control over or benefit from an 6 infringement are jointly and severally liable as copyright infringers). 7 The Grokster decision clearly contemplates joint and several liability where

8 multiple defendants induce massive infringement on the same file-sharing network. 9 Every stage of that litigation involved file-sharing technology that accessed file10 sharing networks also accessible by other file-sharing programs. For example, the 11 lower court case involved three defendants that independently distributed software 12 that connected to the same file-sharing network: As a result, users of these [three 13 different] software platforms [distributed by different defendants] essentially were 14 connected to the same peer-to-peer network and were able to exchange files 15 seamlessly. MGM v. Grokster, Ltd., 259 F.Supp.2d 1029, 1031-32 (C.D. Cal. 2003) 16 (MGM I). The district court found that the plaintiffs had established direct 17 infringement. Id. at 1041. Defendant Streamcast later changed its technology to 18 operate with the Gnutella peer-to-peer protocol. Grokster, 545 U.S. at 921. Just 19 like the prior technology, the Gnutella protocol is used in several different software 20 products owned and distributed by different entities and all Gnutella software 21 products access the same file-sharing network. MGM I, 259 F.Supp.2d at 1041 (A 22 user connects to the Gnutella network (comprised of all users of Gnutela-based 23 software, including not only Morpheus but that distributed by companies such as 24 LimeWire, BearShare, Gnucleus and others)). 25 Despite the fact that the software owned by defendant StreamCast accessed

26 the Gnutella file-sharing network that was also accessed by other Gnutella-based 27 software, the Supreme Court and the district courts analysis of direct infringement 28 -6REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

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1 focused on the massive infringement carried out on the network itself (i.e., 2 Gnutella) not on infringement carried out by specific software programs traceable to 3 specific defendants. Grokster, 545 U.S. at 922-923 (citing study that 90% of 4 activity on the Gnutella network infringing and noting that anecdotal and 5 statistical evidence showed that vast majority of downloading of copyrighted 6 material and infringement of a staggering scope); Metro-Goldwyn-Mayer Studios, 7 Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 984 (C.D. Cal. 2006) (MGM III); 8 Columbia Pictures Industries, Inc. v. Fung, 2009 WL 6355911 at *8, fn. 15 (C.D. 9 Cal. 2009) (noting that courts routinely accept statistical evidence of the amount of 10 infringement that occurs on a peer-to-peer network). Similarly, in the LimeWire 11 case, the LimeWire software also accessed the Gnutella network. 784 F.Supp.2d at 12 410. LimeWire was also distributed by multiple parties. CBSI, in fact, itself 13 distributed hundreds of millions of copies of LimeWire. (Anstett Decl., Ex. C 14 (showing LimeWire as # 3 most popular download on CBSI website 15 Downloads.com as of September 16, 2008 and tallying 207,082,250 downloads of 16 LimeWire from downloads.com as of July 3, 2011). The court enjoined LimeWire, 17 despite the fact that no evidence traced specific infringement to specific LimeWire 18 programs distributed by Lime Group LLC. 19 Because CBSI distributed several torrent software programs and encouraged

20 infringement on torrent networks, CBSI is liable for all infringement on the torrent 21 network. The fact that other entities such as the torrent publisher or a torrent 22 website like the Pirate Bay might be jointly and severally liable for this infringement 23 does not affect CBSIs inducement liability. Were joint and several liability on a 24 network-basis not the rule, inducement liability would be nearly impossible to prove 25 in practice by notorious distributor/inducers arranging their business much as CBSI 26 evidently has here to remain willfully ignorant of the identities of those to whom 27 they distribute products they have promoted for infringement. 28 -7REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

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By CBSIs own statistics, CBSI is a major distributor of bittorrent programs:

2 CBSI distributed 65 million copies of torrent software to a torrent network of 3 approximately 150 million users. (2012 Anstett Decl., Exs. M, S). CBSI currently 4 distributes several torrent clients owned by various entities. (2012 Anstett Decl. 5 22). Plaintiffs have also submitted evidence of the massive infringement in the form 6 of CBSIs own reporting on torrents. (2012 Anstett Decl., Exs. O (CNET article 7 stating that most popular BitTorrent downloads at Rutgers college were Microsoft 8 Office and the movies Fast Five and Pulp Fiction), V (CNET article citing study 9 showing finding that 78% of the 97 million BitTorrent files downloaded inside the 10 United States in the first half of 2012 were copyrighted music files, mostly complete 11 albums). Given CBSIs massive distribution of torrent clients and the massive 12 infringement taking place on torrent networks (along with CBSIs inducement), 13 CBSI is liable for the resulting acts of infringement that take place on the torrent 14 network. As discussed above, Plaintiffs have set forth evidence of infringement on 15 the network and are likely to prove direct infringement. 16 17 18 3. Plaintiffs Are Highly Likely To Prove Intent To Induce (a) All Of Plaintiffs Inducement Evidence Is Relevant

CBSI fails to address the substance of the two most blatant examples of its

19 intent to induce infringement two of the file-sharing smackdown articles authored 20 by CBSI. (2012 Anstett Decl., Exs. P-R; Motion at 12-13). Those articles, which 21 were parts of a series, will be used by Plaintiffs to establish CBSIs intent to induce 22 infringement of Plaintiffs works. 23 CBSI suggests that those articles have no relevance to its intent and motive in 24 distributing P2P software within the statutory period. That is incorrect. Evidence of 25 inducement prior to the statutory period is still relevant to prove intent within the 26 statutory period. Although Plaintiffs may not recover for conduct that occurred 27 outside the limitaitons period, evidence of such conduct may be admissible to shed 28 -8REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

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1 light on the motive with which acts within the limitiation period were performed. 2 (LimeWire, 784 F. Supp. 2d at 418). On remand, the district court in the Grokster 3 case recognized that conduct constituting inducement can occur prior to actual 4 distribution of a device and can also concern products capable of substantial 5 noninfringing uses: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For this reason, the potential noninfringing uses of torrent software discussed at length in CBSIs Opposition are irrelevant because Plaintiffs are highly likely to 27 prove inducement. Grokster, 545 U.S. at 936-37. 28 26 -9REPLY ISO MOTION FOR PRELIMINARY INJUNCTION
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For a party to be liable for inducement, distribution may begin prior to any promotion of infringement . . . and most criticially, distribution can follow past promotion . . . As a matter of common sense, a successful inducer will sometimes have no need to repeat the infringing message ad infinitum . . . At a certain point, the inducer can simply continue to distribute the product without any active encouragement, recognizing that the marketplace will respond in turn . . . Thus, distribution of a product capable of substantial nonfrining uses, even after the promotion/encouragement of infringement ceases, can by itself constitute infringement. Metro-Goldwyn-Meyer Studios, Inc. v. Grokster, Ltd. 518 F. Supp. 2d 1197, 1217 (2007) (MGM IV) (emphasis added).6 Here, CBSIs own reporting shows CBSI knew that torrent applications were used overwhelmingly to infringe copyrights and CBSIs copious expert testimony regarding these purported uses fails to undertake any effort to quantify them (because they are de minimus relative to the infringing uses of the software). (2012 Anstett Decl., Exs. O, V). (b) Plaintiffs Evidence Shows Intent To Induce

CBSI ignores the product descriptions and advertisements for torrent applications available on its websites that reference the features and ability of torrent applications to infringe copyright. (See Motion at 11-12; 2012 Anstett Decl., Ex. S). CBSI also does not address its star-rating system and editorial reviews promoting

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1 torrent applications, its prominent display of the number of times torrent 2 applications have been downloaded from its website, or its suggesting torrent 3 application downloads to users. Instead, CBSI focuses on Plaintiffs exhibits 4 concerning CBSI demonstrations showing the download of works by the bands Nine 5 Inch Nails and Lovedrug. Here, too, CBSI misstates the facts. Even if all of the 6 works displayed in CNETs video demonstrations of uTorrent were licensed for 7 distribution, nothing in either demonstration informs the viewer that CBSI had 8 permission to download those content files. (Anstett Decl. 5). 9 CBSIs video demonstration also explicitly concerns copyrighted files. CBSI

10 editor Seth Rosenblatt demonstrates a uTorrent search that returns copyrighted 11 material as search result. (Id., Ex. G (screenshot from 2009 video showing search 12 result Huge Nine Inch Nails discography), Ex. M (definition of discography)). In 13 other words, the video demonstrates how to use uTorrent to find a torrent file 14 capable of downloading all of Nine Inch Nails musical catalog in one fell swoop. 15 Significant portions of Nine Inch Nails discography, of course, are protected by 16 copyright. (See, e.g., id., Exs. H-J).7 Nine Inch Nails copyrighted material may be 17 infringed by torrents using software distributed by CBSI. (See, e.g., id., Ex. K 18 (torrents of copyrighted Nine Inch Nails songs)). 19 20 (c) CBSI Is Liable For Infringement

CBSI admits distribution of software that can be used to infringe copyright

21 material. CBSI has advocated using that software for that purpose. (2012 Anstett 22 23 24 25 26 27 28 -10REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

Although CBSIs expert identifies a single free album the Slip released by Nine Inch Nails, CBSI offers no proof that Nine Inch Nails has ever offered its entire discography for free download on a torrent network. (Anstett Decl., Ex. L (showing free download of Nine Inch Nails album the Slip that was given away as a thank you to [NIN] fans for your continued support.)). As Exs. H-J show, Nine Inch Nails songs are still protected by copyright and sold through retailers like Amazon.

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1 Decl. Exs. H, M, N, P, S). Accordingly, CBSI is liable for copyright infringement. 2 [D]istribution of the product itself can give rise to liability where evidence that the 3 distributor intended and encouraged the product to be used to infringe. In such a 4 case, the culpable conduct is not merely the encouragement of infringement but also 5 the distribution of the tool intended for infringing use. Grokster, 545 U.S. 940 n. 6 13 (italics and underlining added); see also Columbia Pictures Industries, Inc. v. 7 Fung, 2009 WL 6355911 at *10 (C.D. Cal. 2009). Importantly, liability may 8 attach even if the defendant does not induce specific acts of infringement. MGM 9 III, 454 F.Supp.2d at 984. CBSI induced its users to infringe copyright on a peer-to10 peer platform or network. CBSI is therefore liable for the resulting direct 11 infringement that occurred on those networks including the ongoing infringement 12 of Plaintiffs works. 13 CBSI cannot credibly argue that it is not a distributor of torrent and other file 14 sharing software.8 CBSI actively and publicly markets itself to the publishers of 15 software as a distributor, inviting software makers to promote your software on the 16 largest distribution network in the world. (Anstett Decl. 6, Ex. A. (underlining 17 added)).. Although CBSI appears to admit that the download metrics available on 18 its websites actually misrepresent to the public and potential customers the actual 19 number of downloads caused by CBSI, CBSIs public publishing of this metric 20 along with naming its website download.com are all consistent with CBSIs claim 21 it is the largest distributor of software in the world. CBSI does not deny having 22 commercial relationships with peer-to-peer software publishers or profiting in some 23 24 Contrary to CBSIs implicit claims, there is no evidence that the term 25 distribution in Grokster has any legal or technical definition apart from its normal 26 business meaning the flow of goods. 545 U.S. at 932-3 (analogizing to patent law concept of distribution of a device in commerce). CBSI plays an instrumental role 27 in the distribution of file-sharing software. 28 -11REPLY ISO MOTION FOR PRELIMINARY INJUNCTION
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1 way from its distribution of P2P software. CBSIs suggestion that only the creator 2 of P2P software is liable for inducement completely ignores Grokster. Following 3 CBSIs logic, a third-party entity like CBSI could freely promote copyright 4 infringement while avoiding all liability simply because its users linked to another 5 website to obtain the software. That is not the law. 6 C. 7 Plaintiffs Have Shown Irreparable Harm When a company induces copyright infringement on peer-to-peer networks,

8 the copyright holders suffer irreparable harm. In granting in part the motion for a 9 permanent injunction against Grokster, the district court found irreparable harm 10 because [p]laintiffs copyrights have and will be rendered particularly vulnerable to 11 continuing infringement on an enormous scale due to [defendants]s inducement 12 and thus erodes plaintiffs ability to enforce their exclusive rights. MGM IV, 518 13 F.Supp.2d at 1217. In the consent injunction entered in the Lime Wire case, 14 irreparable harm existed because of the defendants large scale unauthorized 15 distribution of digital copies [that] will continue to facilitate generations of 16 infringement, thus taking away plaintiffs exclusive right to produce and distribute 17 copies. (Anstett Decl., Ex. E (Arista Records LLC v. Lime Wire LLC, Case No. 0618 CV-05396 (KMW) (S.D.N.Y. 2006) (the LimeWire Injunction)). CBSI has 19 distributed tens of millions of copies of torrent applications (and hundreds of 20 millions of other file-sharing applications over the past decade) and induced users to 21 infringe Plaintiffs copyrights. CBSIs actions have eroded and continue to erode 22 Plaintiffs ability to enforce their exclusive rights, which has deprived them of 23 substantial revenues and caused them irreparable harm. 24 D. 25 Plaintiffs Motion Is Timely Excusable delay such as the reasonable investigation of claims in seeking

26 preliminary injunctive relief does not prohibit a Court from granting preliminary 27 relief. See, e.g., Cybermedia, Inc.,19 F.Supp.2d at 1078 (delay of six months caused 28 -12REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

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1 by reasonable investigation of claims does not prevent the granting of a preliminary 2 injunction); Lisa Frank, Inc. v. Impact Intern., Inc., 799 F.Supp.2d 980, 1000-01 (D. 3 Ariz. 1992) (delay of seven months did not preclude court from granting preliminary 4 injunction for copyright infringement in light of motions to dismiss brought by 5 defendants that delayed proceeding). 6 Here, any purported delay in seeking preliminary injunctive relief resulted

7 from CBSIs own conduct and the difficulty and complexity of Plaintiffs factual 8 investigation in a rapidly evolving climate of online piracy. CBSI filed a motion to 9 dismiss that was not heard until almost eight months after the initial complaint was 10 filed. (Anstett Decl. 19). Shortly after filing their FAC, Plaintiffs sought written 11 discovery from CBSI and served requests for production on August 27, 2012, 12 hoping to obtain further evidence of their claims against CBSI.9 (Anstett Decl. 19, 13 Ex. N). CBSI objected to Plaintiffs discovery and has yet to produce a single 14 document in this case. (Anstett Decl. 19). Any delay has been cause by CBSI. 15 E. 16 The Balance of Equities Favors Plaintiffs In MGM IV, the district court found that the balance of hardships tipped in

17 favor of the plaintiffs because the defendants would likely engage in further 18 inducement of infringement in the absence of an injunction. 518 F.Supp.2d at 19 1222. The court came to this conclusion despite the defendants argument that an 20 injunction would wipe out non-infringing aspects of their business and no longer 21 had the intent to induce infringement. Id.; see also Lime Wire Injunction (Lime 22 Wire cannot complain of injury when its business is based on profiting from 23 24 Although Plaintiffs have never accepted CBSIs argument that they must 25 trace specific infringement to specific software distributed by CBSI, Plaintiffs 26 have been aware of CBSIs argument for some time and believe that such tracing is possible from evidence in CBSIs possession regarding the individuals that accessed 27 torrent software available on its websites. 28 -13REPLY ISO MOTION FOR PRELIMINARY INJUNCTION
9

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1 copyright infringement it intentionally induced). Here, CBSI cannot complain that 2 the portion of their business built from their past inducement will suffer. In any 3 event, CBSI has admitted that P2P software is only a miniscule percentage of the 4 applications available on CBSIs website. (Opposition at 13-14). 5 F. 6 The Proposed Injunction Serves The Public Interest The public interest in protecting the exclusive rights conferred upon a

7 copyright holder will be served by issuing an injunction. Apple Computer, Inc. v. 8 Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983); see also Warner 9 Bros. Ent. Inc. v. WTV Systems, Inc., 824 F.Supp.2d 1003, 1015 (C.D. Cal. 2011). 10 Here, the public interest will not be served by allowing CBSI, which has a lengthy 11 history promoting infringement, and distributing a variety of file-sharing software 12 platforms used primarily for infringement, to continue to do so. CBSIs experts do 13 not even attempt to quantify the socially beneficial activities conducting via 14 torrent networks, but CBSIs own reporting concluded that such programs were used 15 overwhelmingly for infringement. (2012 Anstett Decl., Exs. O, V). Also, as CBSI 16 points out, Plaintiffs injunction will not prevent the distribution of torrent clients 17 from other third parties, but rather prevents a notorious inducer from causing further 18 harm. 19 G. 20 The Proposed Injunction Is Neither Vague Nor Overbroad CBSI claims that the proposed injunction is overbroad, because it applies to

21 materials or content that simply describes its function or use and links to the 22 software. CBSI ignores the authority cited above, that distribution of a product 23 capable of substantial nonfrining uses, even after the promotion/encouragement of 24 infringement ceases, can by itself constitute infringement. MGM IV, 518 25 F.Supp.2d at 1232. In the context of that extensive past inducement, CBSI website 26 users continue to understand any promotion of software capable of widespread 27 infringement (as all of the programs in CBSIs P2P category of programs are) to 28 -14REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

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1 be further exhortations to continue infringement. Finally, as to CBSIs First 2 Amendment concerns this Court has already found those to be marginal in this 3 context. To the extent there are any concerns regarding the scope of Plaintiffs 4 proposed injunction, Plaintiffs welcome a discourse on a more efficient constraint, 5 such as removing all links of any kind to download sites, removing total download 6 sections, and/or discontinuing any contracts whereby CBSI profits from click7 throughs or search-related services. 8 9 III. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court enter a

10 preliminary injunction to prevent CBSI from causing further copyright infingement. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15REPLY ISO MOTION FOR PRELIMINARY INJUNCTION

DATED: February 11, 2013

BAKER MARQUART LLP By /s/ Jaime W. Marquart Ryan G. Baker Jaime W. Marquart Attorneys for all Plaintiffs