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Magistrate Orders SonicBlue to Get Up Close and Personal

8 May, 2002 By: Holly J. Wagner

A magistrate's order in a copyright infringement lawsuit the major movie studios and TV networks brought against personal video recorder (PVR) maker SonicBlue has privacy advocates up in arms because it would require gathering customer information that is usually off limits.

“They are asking us to spy on users to obtain information that we don't have and never have had,” said SonicBlue attorney Laurence Pulgram. “They are further asking that we develop all sorts of private information about any way in which people watch TV. ”

The brouhaha centers on a discovery order from Central District Court Magistrate Charles F. Eick, who is managing the pretrial fact-finding process in the case filed last October. Eick has ordered SonicBlue to track individual user behavior, attaching a unique identification number to each subscriber. That would make the data user-specific, rather than using the aggregate data that companies typically use to avoid violating users' privacy. The order has outraged SonicBlue as well as industry and privacy advocates.

“George Orwell must be spinning in his grave,” said Consumer Electronics Association (CEA) spokesman Jeff Joseph. “The court's order is troubling. It forces SonicBlue to violate the trust of its customers and commit an incredible invasion of privacy. By court order, SonicBlue would be forced to spy on consumers and record every click of their remote controls, noting how they watch and record television shows. The data collection would include monitoring if the user chooses to skip commercials, watch the same program more than once or delete a program.”

Plaintiffs in the case include ABC, Castle Rock Entertainment, CBS, Columbia Pictures, Columbia TV, Disney, Fox Broadcasting, HBO, MGM Studios, NBC, New Line Cinema, Orion Pictures, Paramount Pictures, Showtime, TBS, Time Warner, Tristar, 20th Century Fox, United Paramount Network, Universal City Studios, Viacom, Warner Brothers and WB TV.

The studios and networks want to bar SonicBlue from marketing its ReplayTV 4000 because of two features: “AutoSkip,” which lets viewers skip commercials, and a broadband port and “Send Show” feature that let viewers record programs and forward them to friends who also have ReplayTV 4000. They sued SonicBlue seeking a court order barring further sales of the device.

“The studios are claiming that skipping commercials or sending shows to your friends is copyright infringement,” said Pulgram.

As the adversaries gathered information for the case, questions have arisen as to how PVR owners actually use the devices. Unable to provide specific data, Eick gave SonicBlue 60 days to write software that will track individual usage patterns click by click.

The order opens a privacy issue that has dogged Internet users for years: What information is a company allowed to collect about its customers, and how is it allowed to use it? But Eick's order says the court needs the evidence more than users need their privacy.

“To the extent the responsive information and documents may enjoy protection under any alleged qualified privacy privilege, the court has determined that the need for disclosure outweighs the interest in maintaining the alleged confidentiality of the information/documents,” he wrote.

ReplayTV 4000 users don't agree.

“Overwhelmingly, the response that we have gotten from our consumers to date is supportive of our position,” said SonicBlue spokesperson Amanda Sanyal.

SonicBlue will ask the trial judge, Florence Marie Cooper, to review Eick's decision. The judge must reply within 15 days of receiving SonicBlue's request, which was scheduled to be filed by May 9. Pulgram will argue, among other things, that a voluntary survey would provide sufficient information for the case.

“We think it would be a fully accurate way of getting the same information,” Pulgram said. “That was what was done in the Betamax case.”

Privacy advocates have come out against Eick's order as well, and some plan to file briefs supporting SonicBlue.

“We're well aware of this and are planning to file papers before the district court judge, along with a number of other public interest groups,” said Fred von Lohmann, senior intellectual property attorney for the Electronic Frontier Foundation. “Not only is this a gross invasion of consumer privacy, but [it's] another example of Hollywood trying to use copyright law to dictate engineering decisions to technology companies. Remember, Replay hasn't yet been found to have broken any laws.”

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