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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-M-1662 (MJW) ROBERT HUNTSMAN, et al., Plaintiffs, and ‘TRILOGY STUDIOS, INC, et al., Counterclaim Defendants STEVEN SODERBERGH, et al., Defendants and Counterclaimants and ‘THE DIRECTORS GUILD OF AMERICA, Defendant-in-Intervention and Counterclaimant-in-Intervention, MOTION PICTURE STUDIO DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO CLEARPLAY, INC.’S, TRILOGY STUDIOS, INC.’S AND FAMILY SHIELD TECHNOLOGIES, LLC’S MOTION FOR SUMMARY JUDGMENT. FAEGRE & BENSON LLP LOEB & LOEB LLP 3200 Wells Fargo Center 345 Park Avenue 1700 Lincoln Street New York, New York Denver, Colorado 80203 (212) 407-4000 (303) 607-3500 Attorneys for the Studio Defendants TABLE OF CONTENTS Page TABLE OF AUTHORITIES...... iii PRELIMINARY STATEMENT 2 RESPONSE TO MOVANTS’ STATEMENT OF UNCONTROVERTED FACTS won-9 ClearPlay, Ine... ClearPlay’s Preparation and Distribution of Edited Motion Pictures... The User's Operation of ClearPlay Filter Files and Viewing of Edited Motion Pictures .... 2 Trilogy Studios, Inc... 13 Trilogy’s Preparation and Distribution of Edited Motion Pictures... 14 ‘The User’s Operation of MovieMask Player and Viewing of Edited Motion Pictures . —— q = 15 Family Shield Technologies LLC... 218 Family Shield’s Creation and Distribution of Edited Motion Pictures 19 The User's Operation of Movie Shield and Viewing of Edited Motion Pictures... ee 20 ARGUMENT. 2 1. THE ELECTRONIC EDITING PARTIES ARE PREPARING AND EXPLOITING INFRINGING DERIVATIVE WORKS BASED ON THE STUDIOS’ COPYRIGHTED MOTION PICTURE 2 ‘A. The Copyright Act Does Not Require Infringing Derivative Works to be “Fixed” or Embodied in “Permanent or Concrete Form”. 20 1. The Plain Language and Legislative History of the Copyright Act Confirm that Movants Are Preparing Infringing Derivative Works on 24 2. There is No Basis for Applying Galoob’s Embodiment in “Concrete or Permanent Form” Standard in this Circuit..... 29 B. Micro Star Confirms that Even Under the Questionable Ninth Circuit Test the Edited Motion Pictures Prepared by the Electronic Editing Parties Are Embodied in “Permanent or Concrete Form” in their Filter Files... L. Movants’ Edited Motion Pictures Are Embodied in Permanent or Concrete Form in their Filter Files..... 2. Movants’ Edited Motion Pictures _ Incorporate Copyrighted Material from the Studios’ Motion Pictures so : Il FAMILY SHIELD IS COPYING THE STUDIOS’ MOTION PICTURES IN VIOLATION OF SECTION 106(1) OF THE COPYRIGHT ACT es a CONCLUSION 36 39)