ReplayTV Spy Order Delayed

ReplayTV users worried their viewing habits will be tracked have a temporary reprieve: A California federal court has stayed a judge's order to monitor customers' use of the technology.

Earlier in May a federal judge ordered ReplayTV 4000 maker Sonicblue to implement monitoring software to see if customers use the devices to break copyright laws. Sonicblue is being sued by Viacom, NBC, ABC/Walt Disney, and AOL Time Warner. The plaintiffs contend they need the data to determine the extent to which ReplayTV enables theft of their copyrighted content.

Federal Judge Florence-Marie Cooper on Wednesday granted Sonicblue a temporary stay. Sonicblue had asked that the earlier order be reversed, and that it not be forced to monitor customers until the case is reviewed.

However, Sonicblue's reprieve may be brief. Judge Cooper is scheduled to review Sonicblue's position on June 3. The original ruling requires Sonicblue to impose a tracking system no later than June 24.

"I don't think I'd call it a victory. It's more like a life boat," says Andy Wolfe, Sonicblue's senior vice president and chief technology officer. "We still need to fight and go to court and win."

Seeking Balance

The case touches issues of piracy and privacy, fair use and copyrights. Privacy rights groups are concerned that forcing Sonicblue to track its customers' TV-viewing habits sets a dangerous precedent that could permit government or corporations to invade consumers' living rooms. But Sonicblue's case is just the latest in the ongoing battle between the principles of consumer fair use and copyright.

Sonicblue has drawn support from privacy rights groups and consumer electronics firms. It's unprecedented for a judge to order a company to spy on its customers and release findings to plaintiffs, says Megan Gray, senior counsel at the Electronic Privacy Information Center.

However, the request is not entirely new territory for Sonicblue. The company dabbled with monitoring customer usage anonymously, but ceased the practice about a year ago, Wolfe says. Sonicblue's current privacy policy still reserves the option of anonymous tracking of customers' TV-viewing habits.

Feeling Threatened

Only the newest model of Sonicblue's TV recording devices--the ReplayTV 4000--has drawn Hollywood's ire. The reason? This $699 recorder, introduced last fall, lets users skip advertisements when recording, and permits transmission of stored files over networks.

Potentially, users could share recordings with friends over the Internet--although a PC World evaluation found it takes about 36 hours to transmit a 30-minute high-quality recording over broadband.

But Wolfe says Sonicblue has modified its software so it cannot monitor usage of the ReplayTV 4000. Consequently, a court order to carry out the spying would also force Sonicblue to update its software. Wolfe says redesigning the product for that task would be costly and time-consuming for the firm.

"What the stay means is we don't have to change our business or panic in order to create a new technology to monitor our users," Wolfe adds.

Amicus briefs supporting Sonicblue's position on this ruling were filed earlier this week by the Electronic Privacy Information Center, the Consumer Electronics Association, and close to a dozen other firms.