~ "'-
2 Je~erA.
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Andrew P. Bridges, State BarNo. 12276.1 IlRich.ard Nessary, State Bar No. 180682
3 AlexanderD. MacGillivray, StateBar No. 212770
650 PageMill Road 5 Palo Afto, CA 94304-1050
1
Golirivea~ State Bar No. 203056 Tern Y. Che~ ~tate BarNo. 209854
Wll.,SON SONSINI GOODRICH & ROSATI Professional Co:rporation
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I Teleph<;>ne: (650) 493-9300
Facsimile: (650) 493-6811
Fred. von Lohnlan,n" State Bar No. 192657 Robm D. Gross~tate Bar No. 200701
ELECfRONICrKONTIERFOUNDATION
7 Cindy A. Cohn, StateBar No. 145997
10 Teleph<;>ne: 436-9333 123 (415) x Facsimile:(415)436-9993
I
I SanFrancisco CA 94110
:
454
Shotwell
Street
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12 Jeffrey K. Compto~ StateBar No. 142969 13 MaxJ. ~precher\StateBarNo.169285 LINER Y ANKELEVITZ SUNSlllNE & REGENSTREIF 14 3130 Wilshire Boulevard.Suite200 Santa Monic~ CA 90403 I Telephone:(310) 881-2192 15 Facsimile: (310) 453-5901
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'JosephR. Taylor, StateBar No. 129933
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16 Attom~s for Defendants
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17 MusicCity.com, Inc. (now known as
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MusicCity Networks, InC.
Stream CastNetworks~lnc.)and
UNITED STATESDISTRICT COURT 20
CENTRALDISTRICTOFCALIFOR~
WESTERN DMSION
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22 STUDIOSINC., et aI., 23 Plaintiffs, 24
vs.
METRO-GOLDWYN-MA YER
CaseNo. 01-08541SVW (pJWx)
lvIEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANTS STREAMCAST NETWORKS, INC. (FOR1vlERL Y KNOWN AS MUSICCITY .COM INC.) AND MUSICCITYNETWORKS INC. IN SUPPORT OF MonON FOR PARTIAL
25 GROKSTER,Lill., et al.,
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Defendants.
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l.
DECLARAnONS OF DARRELL Slvfirn.Wll..LIAMCLA Y SmRKY ANDREW P. BRIDGES,G~GOR Y
SU1\I1IvIAR Y JUDG:MENT.
,...
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NEWBY M. TALLY GEORGE SEAN
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L. MA %RS, JOHN PERRY BARLOW, BREWSTER KAm..E. RICHARD
PRELINGEK STEVEW. GRIFFIN AND
RICHARD NESSARY IN SUPPORT OF
MOTION
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.1.0
rNotice of Motion and MorioI!, and Statement of Uncontroverted Facts and Conclusions of Law, filed concuuently herewith] Date: Time: Ctml:
Feb.ruary 25,2002 1:30 p.m. 6 (Spring'Street) Hon. Stephen Wilson V.
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Memoran urn m
0082006/001/90045v1
(pJWx)
, Richard Prelinger, hereby declare: 2
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My nameis RichardPre linger. I residein SanFrancisco, California.
I am currently founder and president of Prelinger Associates,Inc.,
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known in the trade as Prelinger Archives, which I founded in 1985, Prelinger
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Archivesis a for-profit archiveof historicalmoving images that furnishesstock footageto the mediaproductioncommunitythroughGettyImages,Inc., its exclusiverepresentative.
I served on the Board of Directors of the Association of Moving
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Image Archivists (AMJA), a professional organization, between 1993 and 1997,
on Board, 10 andam currentlyAMIA'srepresentative the NationalFilm Preservation
as appointed by the Librarian of Congress.
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Before foundingPrelingerArchives,I workedas a researcher and
on 13 archivalconsultant motionpicturesandtelevisionprograms.Between1989and
l4 1995, I was Director of Archival Development at The Comedy Channel and Home Box Office, both in New York City. In 1989, my company pub!ished Footage 89: 16 North American Film and Video Sources,the definitive compendium of public and t7
private moving imagecollections. I attended University of California at the 5. PrelingerArchiveshasassembled ownsa collectionof over and
18 Berkeley, completing four years of class work in 1979. 19 20
48,000"ephemeral" (advertising, educational, industrial,documentary and
films produced between1903and 1990. Approximately60% of this 21 amateur) 22 material is in the public domain; we own ri~ts to approximately 5%; and the
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remainder, currently under cop~ght, is available for on-site reference use only.
24 Weare known in the mdustry for both breadth of imagery and high image quality,
and for our exclusive coverageof many aspectsof American cultural and social history.
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Prelinger Archives is a commercial~for:-profit venture. The market
is 2;8 for our stock images and soundS wide and continues to broaden as the number of
-2DEcLARATION OF RICH~RELJNGER IN SUPPORT OF DEFENDANT'S CASE NO.: Ol~8S41 SVW (pJWx)
1:4)1~
MOTION FOR PARTIAL SuMMARY:JtJOOMENT
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mediaoutletsincreases.We license footage to motion picture producers both in
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and out of Hollywood; broadcastand cable television networks and production
3 companies; software developersand publishers; educational media prOducers;
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corporate video producers for both in-house and external use; to advertising agenciesfor commercials, print advertisementsand presentations;to concert promoters and theatrical promoters fOi use in conjunction with their events and
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productions; to government agenciesat every level; to artists and nonprofit
R organizations for a wide variety of projects; and clients in many other market.
9 areas.
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7.
Historically, collectors or custodiansof public domain materials have
exercised high degree physicalandcontractual a of control over the materialin
12 their possession, an attemptto monopolize in their purportedexclusivity of .J imageryandto preventunauthorized copying. Thoughwe shared perspective this 4 when we beganin business,we quickly found this to be short-sighted.
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In 1987,we partnered WithTheVoy~er Company,a pioneer
publisher of videodiscs and CD-ROMs, to publish two one-hour anthologies of key
7. ephemeral films from our collection. Thoughthe first two compilationssold only
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some 20,000 copies,they proved influential in building our reputation as a source
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for uniqueandevocative historicalimagerywithin the productioncommunity,and,
10 though we had not anticipated that they would so function, endedup serving as 21 excellent "demo reels" of our holdings, bringing us new business(as well as
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national publicity on every major television network).
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In 1994,we beganproduction on an expandedanthology of 12 CD-
24 ROMs, 0 of which were published, that contained a substantial number of
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historical filmS from our collection together with contextual material This anthology also brought us a good deal of press attention and new business. It is important to note that we did not prohibit usersof this secondanthology from copying the movies and using them for their own purposes.
-31411~JS DEcLARATION OF RICHARD PRELINGER IN SUPPORT OF DEFENDANT'S MO110N FOR PARTIAL SUMMARY JUDGMENT
CASE NO.: Ol;.08S4rSVW (PJWx)
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Our experience with thesedigital anthologies convincedus that
2. widespread distriblrtion of our filIns, along with the resultant publicity, built our
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"brand" in the area of archival footage Our willingnessto distributefreely in
digital formatsalso served differentiateus from the growingpool of other to
companies specializing in this area. 11. As a result of our early experienceswith digital distribution, in 2001
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'1 Prelinger Archives arrangedto have 1,001 of our most popular public domain films 8 9
digitized andmadeavailablethroughthe InternetArchivesat www.moviearchive.org. an effort to maximizethe commercial In value of thiS
10 wide distribution, further reuseand redistribution of the digitized films (whether by 1 the communityof peer-to-peer softwareusersor otherwise)wasleft unrestricted.
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Our partnership with the InternetArchive hasaddressed many
First, by building the largest publicly available archival film collection
13 businessissuesfor us in a promising way. 14 15 on the Web, we have accomplishedan enviable goal -- the capability of providing
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demo reels to anyone, anywhere,at no cost to ourselves. When a prospective
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client requests copy of a given film or image,oddsarethat it is av~lable online a
18 for free. This means that our activeinvolvementwith the transaction beginsafter 19 the choice ~~ t?ee~,made, Wedon't have to passthrougn the laborious research and
20 stage.
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Second,free distribution through the Internet Archive, and from there
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further redistribution through other sources,has increasedbrand visibility for Prelinger Archives. 5 Third, since the imagesin the Internet Archive are freely
25 downloadable, believethat they will be usedmorereadily thanimagesin other we
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collections. In the stock image business,ubiquity equals sales. Some years ago,
27 the director of the Time-Life Photo Collection told me that the most used, yet also 28 most remunerative image in her collection was the famous photograph of the 3-D
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-r5EC~TION
OF RICHARD PRELINGER IN SUPPORT OF DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT
CASE NO.: Ol~8S41 SVW(PJWx)
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film audience, seated all wearingstereoscopic glasses.This picture hasbeen
2 reproduced often asto become cliche, but this hasactuallyincreased so a sales. 3 From our perspective,frequent use of our images will increasethe frequency of
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demand for them.
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Fourth,we cannow refer worthy but financially-challenged usersto
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the website,wherethey cangetmaterialfor free without ourselves having to incur visibility of the images they usewill ultimately benefitus.
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1 any costs. We will still gain from the publicity they generate us, andthe for
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Peer-to-peernetworks representa very exciting opportunity, as they
to will propagateimages even more widely without increasing our costs. As
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discussedabove, Prelinger Archives believes that widespread,unrestricted digital
12 distributionof our films bringsimportantcommercial benefits. As a result,we 13 welcomefurtherredistributionof the Prelingerfilms madeavailableat the Internet
14 Archive by individuals using peer-to-peersoftware products like Morpheus,
15 KaZaA and Grokster. 16
" millions of others in the peer-to-peercommunity, the usersof thesepeer-to-peer
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By voluntarily "hosting"our films andmakingthemavailableto the
18 softwareproductsareamplifying the availability of the Pfelingerfilms, extending
19 our reachbeyondthat of the InternetArchive alone. To the extentthis is done
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without imposingany additionalcostsonPrelingerArchives,whetherill the fonn
I declare under penalty of perjury under the laws of the United Statesof
21 of hosting or bandwidth charges,this is great for us
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Americathat the foregoingis true andcorrectandthat this declaration executed is in
T,,~
5~_~~'fllt
.
~.~~.~
PV;
on
2002.
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-5DEcLARAooN OF ~CHARD PRELINGERIN
~'dt~~
Richard Prelinger
\4\76S5
MOTION FOR PARTIAL SUMMARY~DGMENT
SUPPORT OF DEFENDANT'S
CASE NO.: 0.1-0854.1SVW (pJWx)
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