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Two Studios, NBC Sue ReplayTV Over Copyright

1 Nov, 2001 By: Joan Villa

Features on new models of ReplayTV personal video recorders that allow consumers to easily skip commercials and send entire programs over the Internet have come under fire from major television networks.

Walt Disney, Viacom and NBC filed suit in U.S. District Court in Los Angeles last week to bar Replay’s parent company SONICblue from releasing its Replay 4000 series next month, which they say is an “unprecedented“ violation of copyright owners’ rights.

The ability to “autoskip” commercials is an “unlawful activity [that] harms the potential market for and value of plaintiffs’ copyrighted works because commercial advertising is a crucial (and often the sole) means by which plaintiffs receive payment for such programming,” states the joint complaint.

Both the Replay 4000 and SONICblue’s DDV2120, an analog VCR-type player released last month, feature a “send show” button to transmit recordings through high-speed DSL or cable modem Internet connections.

“This unlawful activity likewise deprives plaintiffs of the means of payment for, and diminishes the value of, their copyrighted works,” the suit continues. “These new infringing features, which defendants plan to bolster through daily contact with their customers, are the principal selling points of the ReplayTV 4000 package and the DDV2120 device.”

SONICblue responds that studios will be the big beneficiaries from Internet-based network technology, which enables them to sell new customer services over broadband. The “skip” feature, allowing consumers to advance content in 30-second intervals, simply employs digital technology for the fast-forwarding that people already do with other PVRs and VCRs, according to SONICblue’s chief technology officer Andy Wolfe.

Interactive video analyst Gary Arlen, president of Arlen Communications in Bethesda, Md., says the “auto-skip” button works instantaneously in a digital environment, compared to waiting for tape to advance through VCR-like fast-forwarding, but the concept is the same.

Networking, on the other hand, “is considerably more critical because this feature really gives anyone with an Internet-able unit the ability to distribute content around his house or even to friends,” explains Arlen, who estimates there are about 300,000 PVR devices in U.S. homes. “Especially a digital copy that will reside in the PVR and can then be retransmitted is what scares the broadcast networks and digital copyright holders.”

The Video Software Dealers Association’s v.p. of public affairs, Sean Bersell, agrees the transmission of copyrighted material worries the networks in the same vein as Napster-like file-swapping led to music company lawsuits.

“The court in the Napster case said that’s copyright infringement,” Bersell explains. “You don’t have the right to take a videotape and make a copy for somebody, so do you have the right to record a program on a PVR and send it digitally? How is that different? Replay will argue that’s ‘fair use’” — allowed under the 1984 Sony Betamax decision that upheld the use of VCRs — “although I think that’s a difficult argument to make.”

On the other hand, he believes the “auto-skip” feature isn’t significantly different from arguments made in the Betamax case, which ultimately allowed the “time-shifting” of recorded programming even though it was understood consumers could fast forward through commercials.

“The only difference seems to be rather than the consumer keeping their thumb on ‘fast forward,’ there’s a button they push,” he adds.

Ironically, earlier this month SONICblue won a 2001 Technological/Engineering Emmy from the National Academy of Television Arts and Sciences for a significant contribution to “unique technological innovation.”

At the time, the company touted the Replay 4000 as the “first networked and broadband-enabled DVR that allows consumers to record up to 320 hours of programming.” The device “connects to a cable modem or DSL for fast transferring of video programs over broadband and can share videos with other ReplayTV 4000s throughout the house over a home network,” a company statement says.

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