Court Asked to Rule for Recording Rights

The Electronic Frontier Foundation has fired back at Hollywood's attempt to ban the use of some digital video recorders, filing suit against 28 major entertainment companies and claiming that they are trying to curb users' fair-use rights.

The suit, filed Thursday in the U.S. District Court for the Central District of California in Los Angeles, is part of a broader effort by the civil-liberties group to fight what it calls Hollywood's overzealous attempts to limit users' rights in relation to digital media.

Similar Battles

The new suit was filed on behalf of five digital video recorder users who feared they could be individually sued by the entertainment industry if they did not seek preemptive legal protection.

The group asks for three declaratory judgments: It wants the court to state that users have the right to digitally record programming, to fast-forward through it, and to send the recordings to other devices via their digital video recorders.

"I don't think we have to wait around for these plaintiffs to be sued and lose their houses and money before we seek relief," says Ira Rothken, an attorney in the case.

Entertainment companies filed suit against SonicBlue and Replay late last year, claiming that those businesses are enabling consumers to make unauthorized copies of copyright-protected content. Replay makes ReplayTV digital recording devices while SonicBlue provides the software and services for the technology.

That suit focuses on the ReplayTV 4000 series of digital video recorders, which allow users to view programming with the advertising deleted and to send copies of programs to other devices. The entertainment companies claim that these practices threaten their business, which relies on advertising to finance the production of programming.

However, EFF claims that such practices are protected under fair-use laws. It cites as precedent the 1984 Sony vs. Universal case: Hollywood companies originally subjected Sony's Betamax to the same legal scrutiny, but the U.S. Supreme Court eventually ruled that the equipment was lawful.

SonicBlue's advocates recently scored a win when a federal district court overturned an earlier ruling ordering ReplayTV to record its customers' viewing habits so that the entertainment companies could prove that people sometimes use the equipment for piracy.

Gearing for a Fight

"Basically, I'm just trying to exercise my normal rights," says Craig Newmark, one of the five plaintiffs in the case. "Like with my [video]cassette recorder, I want to play back programming and zip through commercials."

Newmark is one of just 5000 owners of ReplayTV 4000 digital video recorders. Part of EFF's argument in the case is that the practices of 5000 consumers are not going to affect the business models of the entertainment industry.

"It's time, frankly, for the users' voices to be heard," says EFF attorney Fred von Lohmann. "When it comes to TV, we aren't in their movie theaters, they are in our living room."

In a statement of response, the Motion Picture Association of America (MPAA), defendants in the case, characterized the new suit as a publicity stunt.

"This complaint mischaracterizes the nature of the case against SonicBlue and ReplayTV. Our lawsuit is against SonicBlue and ReplayTV--not individual users," the statement said.

The defendants went on to say that they have no desire to bring legal action against individual ReplayTV users.

EFF is asking to consolidate the new suit with the entertainment industry's original case, which was filed in the same Los Angeles court.

The legal move is part of a larger battle between Hollywood and civil-liberties groups over consumers' use of digital content. Earlier this week, EFF was one of a handful of groups that rallied against a proposal to legally mandate encryption of digital TV signals, keeping them from being transmitted to the Internet. Moves such as these would violate consumers' fair-use rights and curb technological innovation, the groups say.