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EFF Sues Hollywood For Fair Use

6 Jun, 2002 By: Holly J. Wagner

A consumer organization today sued 28 media companies including all the major Hollywood studios in a case designed to protect consumers' right to record and share television programming.

The Electronic Frontier Foundation (EFF) filed the case in U.S. District Court in Los Angeles on behalf of five Sonicblue ReplayTV 4000 users who say a case pending before the same court could make them criminals.

In the underlying case, the studios and TV network plaintiffs seek to have the ReplayTV 4000 banned, contending it is a tool for copyright enfringement.

“A condition precedent to finding ReplayTV liable is to find that these plaintiffs are engaged in copyright enfringement,” said plaintiffs' attorney Ira Rothken in describing the motivation for the case.

The lawsuit seeks no money damages; instead it asks the court to rule that viewers have the right to use personal video recorders (PVRs) such as the ReplayTV 4000 or TiVo to time-shift, skip commercials and to share programming with friends as long as they do not profit from the sharing.

“These are abilities that consumers have had in one form or another since the VCR started in 1976,” said senior counsel Fred Von Lohmann. “If you listen to (the studios) you would think the decision only applies to that one device, that it only protects you if you somehow exhume a Betamax from the dump.”

Emily Kutner, spokesperson for the Motion Picture Association, said the trade group would have a statement on behalf of the studio defendants later today.

EFF brought the case to add a consumer voice to the debate over PVRs in general and ReplayTV 4000 in particular, said EFF attorneys Von Lohmann and Robin Gross.

They cited a recent Cableworld interview with Turner Broadcasting CEO Jamie Kellner, who equated skipping commercials with stealing.

“That's a business model that Hollywood chose, to provide entertaining programming and hope that you stick around for the commercials, said Gross.

“Reports of Hollywood's imminent demise tend to be great exaggerated,” Von Lohmann added. “There is no impeding demise of the advertising model from this device or any PVR.”

Plaintiff Shawn Hughes said he wants to protect his right to use a PVR to filter programming his four-year-old son is exposed.

“During prime time when my 4-year-old gets out of school there is no educational programming on TV,” he said. “I want to be able to pick and choose what he's watching.”

I'm just trying to exercise my normal rights to video recording just like with my video recorder,” said plaintiff Craig Newmark, who manages an online community called Craig's List. “I feel like I represent the community that I am serving, which is a few million people. and they want us to stand up for them. Not only for issues like this but we're fighting Spam.”

Attorneys hope the court will consolidate this new action with the case the studios filed against Sonicblue in October.

Plaintiff Keith Ogden, a freelance writer who notes he makes his living with copyright-protected work, said a magistrate's order to collect user data in that case – since overturned – prompted his involvement in the EFF case.

“I actually found Robin and the EFF folks through a Web site and asked to join because I think this is such a drastic overstepping of bounds,” said. “I don't think any media company should be able to get my personal information and use it under government direction. I was so offended that I had to get involved.”

Sonicblue, which is named as a defendant in the case because it makes the ReplayTV devices, did not immediately reply to a request for comment. Von Lohmann said the company has not been involved in the case, which most likely would further Sonicblue's goals, to date except that EFF notified it that the case would be filed.

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