What is this lawsuit all about?

In this lawsuit five ReplayTV owners are asking the court to declare
that their use of the ReplayTV devices to digitally record television
programs, share those recordings with different devices that they own
and skip commercials is lawful under copyright law. In courts and
press statements Hollywood executives have claimed such activity is
“theft”. This case seeks a declaration of law that ReplayTV
users are not thieves and that they be allowed to continue to use
their digital VCRs.

The claim that ReplayTV owners are “thieves” also underlies
the current lawsuit brought by 28 Hollywood TV and movie conglomerates
to have the ReplayTV declared illegal. Those same 28 TV and movie
conglomerates are named in this lawsuit.

The case has been filed in Federal District Court in Los Angeles,
California, where the current ReplayTV lawsuit is pending.

Who are the Plaintiffs?

The Plaintiffs are five owners of ReplayTV devices whose rights are at
stake in the pending lawsuit between Hollywood and ReplayTV.

Craig Newmark: Bay-Area founder of Craigslist.org community
website who uses his ReplayTV device for time-shifting purposes (as
explained more below, “time shifting” is what the Supreme
Court has called recording programs to watch them later) and he would
like to send shows to his laptop for viewing while traveling.

Shawn Hughes: Small business owner in Georgia who uses his
ReplayTV device primarily to control the amount of advertising his
children are exposed to. He also uses his ReplayTV unit to send shows
to his laptop so he can watch them elsewhere.

Keith Ogden: Small business owner of a San Francisco financial
brokerage firm who uses his ReplayTV device for time-shifting purposes
and to fast-forward past some commercials.

Glenn Fleishman: Seattle journalist who uses his ReplayTV
device for time-shifting purposes and to fast-forward past some
commercials.

Phil Wright: Video engineer in southern California who uses his
ReplayTV device for time-shifting purposes and to fast-forward past
some commercials.

Who are ReplayTV and Sonic Blue?

ReplayTV is a wholly owned subsidiary of Sonic Blue. ReplayTV makes
and distributes personal digital video recorders for television,
basically, “digital VCRs”. Both companies have been sued by
dozens of TV and movie studios for providing the devices to the
ReplayTV customers bringing this suit.

Who are the Defendants?

The 28 Hollywood movie and TV studios that sued ReplayTV and Sonic
Blue last year claiming the ReplayTV owners were engaging in copyright
infringement are the defendants in this lawsuit.

Specifically, the defendants are:

  • Turner Broadcasting System, Inc.;
  • Disney Enterprises, Inc.;
  • Paramount Pictures Corporation;
  • National Broadcasting Company, Inc.;
  • NBC Studios, Inc.;
  • Showtime Networks Inc;
  • The United Paramount Network;
  • ABC, Inc.;
  • Viacom International Inc.;
  • CBS Worldwide Inc.;
  • CBS Broadcasting Inc.;
  • Time Warner Entertainment Company, L.P.;
  • Home Box Office;
  • Warner Bros.;
  • Warner Bros. Television;
  • Time Warner Inc.;
  • New Line Cinema Corporation;
  • Castle Rock Entertainment;
  • The WB Television Network Partners, L.P.;
  • Metro-Goldwyn-Mayer Studios;
  • Orion Pictures Corporation;
  • Twentieth Century Fox Film Corporation;
  • Universal City Studios Productions, Inc.;
  • Fox Broadcasting Company;
  • Columbia Pictures Industries, Inc.;
  • Columbia Pictures Television, Inc.;
  • Columbia Tristar Television, Inc.;
  • Tristar Television, Inc.,

How does this case relate to the existing
lawsuit that Hollywood filed against ReplayTV last Fall?

In October 2001, ReplayTV and Sonic Blue were sued by major Hollywood
film and television studios seeking to ban ReplayTV personal recording
devices. The studios claim that because the devices allow people to
digitally record their favorite television programs, skip over the
commercials, and send the shows to their other devices, that the units
should be banned under the legal theories of contributory and
vicarious copyright infringement. In other words, the lawsuit claims
that the device should be made illegal because ReplayTV owners are
stealing. Put another way, if ReplayTV customers are not infringing
copyrights, then the conglomerates have no claim for
"secondary" liability against the company itself and no
basis on which to ask that the ReplayTV devices be banned.

Because the underlying question in both of the two lawsuits is the
same -- is it legal for consumers to use digital VCR’s? –
this case will likely be “consolidated” with the
pre-existing law suit against ReplayTV as “related” under
the law. This is a common practice when two lawsuits turn on the same
underlying facts and law.

What are the next steps in the case?

As noted above, this case will likely be joined with the pre-existing
ReplayTV case in order to more efficiently decide the underlying
question of whether use of the ReplayTV is legal.

In any case, the Hollywood defendants will have to respond formally to
the case within 20 days of when they are served with the complaint.

What happened to the Magistrate’s 4/26
Order requiring ReplayTV to spy on its customers?

On May 31st, District Court Judge Cooper set aside the
Magistrate’s discovery order which would have required ReplayTV
to re-write its software to collect information about the viewing
habits of its customers and turn that information over to Hollywood in
the underlying lawsuit. ReplayTV objected to the discovery order and
several groups (including EFF) weighed in with the court through
amicus briefs arguing the discovery order violates the privacy rights
of the ReplayTV owners.

Didn’t the U.S. Supreme Court already
decide this issue in the famous “Betamax” case when
Hollywood tried to ban VCRs?

That’s what we thought too. In 1979, Universal City Studios sued
Sony Corp. for distributing VCRs under the same legal theory, that the
devices are “tools of piracy” because they make unauthorized
copies of copyrighted movies and TV programs. Rejecting that
argument, the U.S. Supreme Court ruled that because VCRs are capable
of substantial non-infringing uses, such as “time-shifting”,
they were lawful devices under copyright. As it turns out, it’s
a good thing for the studios that the court decided against them in
1984 since now VCR tape rental and sales account for most of their
profits.

What is “Time-shifting”?

“Time-shifting” is recording a program or movie to watch it
at a later time. In Sony v. Universal City Studios in 1984,
the U.S. Supreme Court held that “time-shifting” of
television and movies is a lawful Fair Use. Similar to the
“time-shifting” principle, the 9th Circuit Court
of Appeals in a case called RIAA v. Diamond Multimedia

indicated in 1999 that “space-shifting” of music, that is
moving music from one device to another, is also a lawful personal use
under the Audio Home Recording Act. In the Diamond Multimedia
case, the recording studios argued that shifting music from your PC to
your portable MP3 player was theft and illegal under copyright.
Luckily, the 9th Circuit disagreed and rejected the industry’s
attempt to ban MP3 players.

What are EFF and other attorneys’ role in
this lawsuit?

EFF represents the five ReplayTV customers seeking a declaration of
law that their uses of the ReplayTV devices are lawful under
copyright. Attorney Ira Rothken of the Rothken Law Firm is also
working on the case with EFF.