ReplayTV User Lawsuit Can Proceed

A federal court Friday said a lawsuit brought forward by ReplayTV owners will get its day in court.

The suit by five ReplayTV owners including craigslist.org founder Craig Newmark, asserts they can zap commercials and swap recorded programs over the Internet without being sued for copyright infringement.

District Court Judge Florence-Marie Cooper denied an entertainment industry motion to dismiss the case and even went so far as to combine both the ReplayTV action and the Newmark case.

“The issue of whether the Newmark Plaintiffs’ use of the ReplayTV DVRs’ send-show and commercial-skipping features constitutes fair use will most likely figure prominently in both the ReplayTV action and the Newmark action,” wrote Judge Cooper in her opinion.

Santa Clara, Calif.-based SONICblue , which makes the ReplayTV 4000 digital video recorder (DVR), has been the subject of a series of lawsuits.

The complaint by media companies like AOL/Time Warner and NBC is that the company’s most popular digital video recorder to date, enables copyright infringement by allowing users to send files via a ‘Send Show’ feature over the Internet – redistributing entertainment content without permission from copyright holders.

Along with Newmark, ReplayTV customers filing the lawsuit with legal representation by the EFF are: Keith Ogden, owner of a financial broker firm in San Francisco; Shawn Hughes, a small business owner in Georgia; Seattle journalist Glenn Fleishman; and southern Californian video engineer Phil Wright.

“Our point is that consumers should have a voice in this case, and by extension, all related issues,” Newmark said on his Web site Blog. “The lead attorney for Hollywood stated very explicitly that their position is that consumers should have no voice in this case. I have every confidence that’s their official position in general. The guy even said that ‘consumers have no rights’ and while I think he meant that in some mysterious legal sense, he really means it.”

Responding to the entertainment industry’s lawsuit against DVR manufacturers, San Francisco-based online non-profit, civil liberties organization Electronic Frontier Foundation (EFF), petitioned the court on behalf of the five ReplayTV owners to declare legal their use of the digital devices also known as personal video recorders (PVRs).

On May 3, Central District Court Magistrate Charles Eick ordered SONICblue to reveal the individual viewing habits of its ReplayTV 4000 customers and pinpoint the frequency with which movie and television shows are recorded and electronically shared with other users. That mandate was dismissed on June 3.

Now that Newmark and SONICblue’s suits are merging, the EFF said it seeks to ensure that the legal debate over DVRs will include consumers’ concerns along with those of the entertainment and consumer electronics industries.

“I’m not a crook if I skip commercials or share a news interview of myself with my mom using the SendShow feature rather than sending her a videotape,” said Newmark. “I shouldn’t have to worry about getting prosecuted, but the Turner Broadcasting CEO tells us that taking a bathroom break is criminal. We even have Senators urging Attorney General Ashcroft to prosecute people who share files.”

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