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Judge to Studios: EFF Gets A Peek

16 Oct, 2002 By: Holly J. Wagner

Attorneys from consumer watchdog group Electronic Frontier Foundation (EFF) will be allowed to see thousands of pages of information from 28 Hollywood studios and networks about lobbying activities and information turned over to the federal Department of Justice (DOJ) regarding proposed video-on-demand Web sites Movielink.com and Movies.com.

The order the studios sought "would impair significantly the prosecution of the Newmark Plaintiffs' claims [in the ReplayTV case] by effectively preventing attorneys from the Electronic Frontier Foundation from serving as litigation counsel for the Newmark plaintiffs," federal Judge Magistrate Charles Eick ruled.

The studios had sought a protective order that would effectively declare EFF a professional competitor with the studios and keep the group from reviewing studio documents. Also at issue are studio business plans, financial documents, licensing agreements and security and content protection assessments.

Lobbying documents listed include "regulation of VCRs and PVRs (such as the ReplayTV 4000), commercial skipping behavior of consumers and the Macrovision provisions enacted in the Digital Millennium Copyright Act."

EFF attorneys, along with attorney Ira Rothken, represent five consumers -- collectively tagged the Newmark plaintiffs -- in a case brought to squelch features of personal video recorders (PVRs) like SonicBlue's ReplayTV 4000 series.

The studios initially sued ReplayTV maker SonicBlue, demanding it cease providing PVRs with "auto-skip" and program forwarding features.

With EFF at the helm, the consumers then sued the studios for allegedly trampling on their fair use rights and later persuaded a judge to merge the two cases, pitting SonicBlue and the consumers against the studios. So far, however, little of the action has directly involved SonicBlue.

The immediate dispute resulted, in part, from that consolidation. EFF attorneys won the right to see information gathered before it joined the U.S. District Court for the Central District of California.

"No justification has been offered as to why EFF needs access as long as Mr. Rothken is involved," argued attorney Scott Cooper, representing the studios -- including Universal, Time Warner, Columbia, Paramount, Disney, Fox, MGM, Viacom and NBC Studios, among others. He contended that EFF's political agenda makes it a competitor in to the studios' interests.

"Were these EFF lawyers to gain access through this litigation to "Highly Restricted" information about, for example, plaintiff MGM's business plan for maximizing revenues from DVD distribution, or plaintiff Time Warner's analysis of the weaknesses of a particular content security system, that information would inform all of their future lobbying work for EFF," Cooper contended. "No matter how high their professional integrity, these lawyers, because they are human, cannot forget what they have learned and cannot erect ethical walls within their own brains."

The studios have not been able to show how the disclosures would harm them and the information sought is not trade secrets, EFF legal director Cindy Cohn argued in court.

"We have been averse to the movie studios in four cases now," she said. "You would think they would have been able to come up with one concrete example in three years."

Cutting her and her colleagues off from the documents the studios deem "Highly Restricted" would deny them access to 94 percent of the documents in the case -- pegged at some 780,000 pages -- and thereby deny the Newmark plaintiffs effective counsel, Cohn argued.

"We are completely willing to be gagged here," she said. "this is about whether we get to be lawyers."

At least 19 bills pending on Capitol Hill today are backed by Hollywood interests. Most involve digital rights and/or fair use.

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