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EFF Sues to Affirm Consumers' Use of ReplayTV Device

Brenda Sandburg

The Recorder


In a move to put pressure on the entertainment industry, the San Francisco-based Electronic Frontier Foundation filed suit Thursday against movie studios and television networks seeking to outlaw a recording device that deletes TV commercials.

Filed on behalf of five consumers, the complaint asks the Los Angeles federal court to rule that the individuals can use the ReplayTV 4000 digital video recorder to fast-forward through commercials and send copies of programs they record to others. Craig Newmark, founder of the San Francisco Bay Area community Web site craigslist.org, is the lead plaintiff.

The litigation is the most recent development in the ongoing dispute over whether technology is being used to infringe copyrighted works. The issue has come to the forefront in the past three years, as new technology has made it easier for consumers to tinker with copyrighted material.

Movie studios and TV networks sued SonicBlue in October, claiming that its digital video recorder would deprive them of advertising revenue and thus harm the value of their copyrighted works. Federal Magistrate Judge Charles Eick ordered SonicBlue to submit data as to how ReplayTV owners were using the device. Last week U.S. District Judge Florence-Marie Cooper of the Central District of California reversed the ruling.

EFF filed the suit "to finally get closure and reduce the apprehension and fear people have about using digital VCRs in their homes," said Ira Rothken, a San Rafael, Calif., solo working with EFF on the case. "Plaintiffs can't afford to wait to be sued."

But the 28 motion picture studios and TV networks named in Newmark v. Turner Broadcasting System dismissed the suit as "nothing more than a publicity stunt."

"This complaint mischaracterizes the nature of the case against SonicBlue and ReplayTV," the companies said in a statement. "We have never indicated any desire or intent to bring legal action against individual consumers for use of this device."

EFF is seeking to consolidate its suit with that of the industry's complaint against SonicBlue. The EFF complaint also names SonicBlue Inc. and device manufacturer ReplayTV Inc. -- which SonicBlue acquired -- as defendants.

Rothken said SonicBlue and ReplayTV had to be included in the case in order for the plaintiffs to get full relief. As the device manufacturers, they are "in possession of the statistics and data needed to properly prosecute the case," he said.

Having consumers go after the entertainment industry could be an end-run around the industry's suit against SonicBlue. The movie studios and TV networks claim in Paramount Pictures v. ReplayTV, 01-9358, that the company is liable for contributory copyright infringement.

"Our case is saying users are not infringing on copyright," Rothken said. "If we win you never get to the case against Replay because you can't have secondary liability without primary liability."

SonicBlue attorney Laurence Pulgram, a partner at Palo Alto, Calif.'s Fenwick & West, said he had no involvement in the preparation of the suit and that consumers acted independently.

"We always knew that SonicBlue was on the side of consumers, and it's good to have consumers joining us in asserting their rights," he said.

EFF, as well as many copyright attorneys, contend that the industry's suit against SonicBlue is similar to its attempt to keep Sony's Betamax videocassette recorder off the market. The U.S. Supreme Court ruled in 1984 in Sony v. Universal City Studios, 104 S.Ct. 774, that the device did not infringe copyright since it was capable of substantial noninfringing uses. The movie studios and TV companies argue, however, that the ReplayTV device will eliminate advertising revenue necessary to cover the costs of airing programs. EFF says it's up to the industry to come up with other ways of generating revenue.
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