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FYI, this from the June 4, 2002 issue of the Daily Journal, the main legal newspaper in California.


Replay TV Wins Discovery Fight With Studios

Movie and television studios had wanted the digital recording service to supply data on its users.


By Craig Anderson

Daily Journal Staff Writer

SAN JOSE - A federal district judge has overturned a magistrate's order that would have required a company that markets a digital television recording service to monitor its customers to determine how they use it.

In a ruling filed Friday in a closely-watched copyright tampering case, U.S. District Judge Florence-Marie Cooper of Los Angeles said the defendant company could not be required to gather information for discovery. Paramount Pictures v. Replay TV, 01-9358 FMC.

Several movie and television studios had sought information from Replay TV, a digital recording service that allows users to skip commercial advertising while recording programs, transmit digital movies and television programs to other people, and create video libraries of up to 320 hours.

The studios, concerned about the potential loss of advertising revenue, argued that Replay TV encourages piracy. As a result, they wanted to find out how people use the digital recording devices, and they said the company could easily monitor the consumers.

Attorneys for Replay TV objected, saying they had stopped collecting the information last May after a competitor, TiVo, received negative publicity for monitoring what its customers were watching. Furthermore, they said, it would be an invasion of their customers' privacy to do so.

Cooper agreed with them, saying the magistrate's order "impermissibly requires defendants to create new data which does not now exist."

To comply with the magistrate's order, Replay TV would have had to create new software and incur a substantial expense in an effort that would take four months, Cooper wrote.

"The court does not question the relevance of information concerning how customers of Replay TV4000 use their units," she wrote. "However, this information can be obtained by plaintiffs by conducting surveys, a traditional method of gleaning customer data in copyright-infringement cases."

Laurence Pulgram, a partner at Fenwick & West in San Francisco who represents Replay TV, hailed the ruling. "The right way to get this information is by a survey, as we suggested, not by implanting software and spying on the users," he said Monday.

Pulgram said he is seeking financial data from the entertainment industry to challenge the studios' claim that the Replay TV device is hurting their bottom line. The judge, in her order, allowed discovery of the companies' financial documents and business plans dating to 1984.

Replay TV won't hurt them in any substantial or recognizable way, said Pulgram, who accuses the entertainment industry of abusing its copyrights.

Scott Cooper, an attorney with Proskauer Rose in Los Angeles who represents three of the entertainment company plaintiffs, said the ruling was narrow and is based on the court's acceptance of the company's assertions of what it could do.

"I don't think this will have an impact on the case," said Cooper, adding that he was pleased the court accepted the importance of the sort of evidence his clients sought.
 

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"The court does not question the relevance of information concerning how customers of Replay TV4000 use their units," she wrote. "However, this information can be obtained by plaintiffs by conducting surveys, a traditional method of gleaning customer data in copyright-infringement cases."

Laurence Pulgram, a partner at Fenwick & West in San Francisco who represents Replay TV, hailed the ruling. "The right way to get this information is by a survey, as we suggested, not by implanting software and spying on the users," he said Monday
Now we know what all those surveys were about!


Robert
 
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