Are ReplayTV Users Breaking the Law? Are You Sure?

by Don Marti

Electronic Frontier Foundation attorneys Robin Gross and Fred von Lohmann, along with Ira Rothken of the Rothken Law Firm, announced that they are suing the major movie studios for a declaratory judgment stating that it's legal for people to use ReplayTV personal video recorders. Even if won, however, the judgment could end up falling short of protecting viewers' right to transfer recordings to non-ReplayTV devices.

The plaintiffs in the suit are five ReplayTV customers, who von Lohmann said "have a very legitimate concern that their rights will be adjudicated without them being involved." The movie studios are currently suing ReplayTV manufacturer Sonicblue.

"They're filing against technology companies and there isn't an opportunity for consumers to be heard," Gross said. In addition to the movie studios, ReplayTV is also named as a defendant in the suit, which Rothken said is for "procedural reasons". He said he wants the new case to be combined with the existing case against Sonicblue. It's possible that our case may even be tried first, he said.

In a conference call today, the EFF attorneys told the Mainstream Media that ReplayTV PVRs simply give viewers the same time- and space-shifting capabilities that they now have with VCRs. The suit asks a Federal court to rule that ReplayTV owners are within the law when they digitally record TV programs, skip commercials, and send recorded shows to other devices.

But Rothken said that it is as yet unclear whether those users have the right to use third-party devices to transfer shows to non-ReplayTV devices, as plaintiff Craig Newmark, founder of Craig's List said he does.

Von Lohmann said the current case against Sonicblue alleges that ReplayTV users are using the device for copyright infringement but that the five plaintiffs will show ReplayTV is being used for legitimate purposes. "These five individuals are not sharing video with millions of people around the world. "Let's look at what real people are doing and how fair use applies to what they're up to," he said. One plaintiff, Shawn Hughes, said he uses the ReplayTV because, "during prime time there's no educational programming on television."

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