Studios Assail ReplayTV Technology

As the makers of personal video recorders broaden the appeal of their revolutionary devices, a group of Hollywood studios is attacking the recorders’ core functions.

PVRs are the digital successor to videocassette recorders, storing programs digitally on a high-capacity computer hard drive instead of removable tapes. They play tricks with live programs--pausing, rewinding and replaying them in mid-broadcast--and make it simple to find and record shows that match one’s tastes.

Two of the leading PVR brands, TiVo and ReplayTV, recently announced plans to deliver more types of entertainment through their devices, including digital music services and online video programming.

Sonicblue Inc., the Santa Clara-based firm behind ReplayTV, plans to sell a version of its recorder this fall for less than other PVRs on the market.

Sonicblue is steaming ahead, despite four lawsuits filed by Hollywood studios just as the ReplayTV 4000 was being introduced in November.

The lawsuits, which were brought by the largest TV networks and all seven major Hollywood movie companies, say the ReplayTV recorders violate copyrights by enabling users to send videos to other ReplayTV boxes over the Internet and skip commercials automatically.

The suit filed by MGM, Fox, Universal Studios and Orion Pictures goes furthest, arguing that it’s illegal to let consumers record and store shows based on the genre, actors or other words in the program description. This claim threatens not just the ReplayTV devices, some copyright experts say, but all recorders like it.

Unlike VCRs, which require users to record shows by time slot or unique number, PVRs record based on a show’s name or program description. Users don’t need to know when “Friends” is on. They just need to know the name or a leading actor. Once a program is found, the device can be set to capture it whenever it’s on the air.

The MGM lawsuit contends that ReplayTV 4000’s expanded storage and sorting features encourage consumers to assemble libraries of copyrighted material, eating into the market for those shows.

“If a ReplayTV customer can simply type ‘The X-Files’ or ‘James Bond’ and have every episode of ‘The X-Files’ and every James Bond film recorded in perfect digital form and organized, compiled and stored on the hard drive of his or her ReplayTV 4000 device, it will cause substantial harm to the market for prerecorded DVD, videocassette and other copies of those episodes and films,” the lawsuit states.

The problem with this argument, several copyright attorneys say, is that consumers already can compile such libraries with a VCR, albeit less conveniently.

“This is not a feature that couldn’t be duplicated by someone with even a minimal amount of effort,” said J.D. Harriman II, a patent and entertainment attorney with Coudert Bros. law firm in Los Angeles. “And because all these TV guides are online already, it wouldn’t be that hard.”

Mark Lemley, a UC Berkeley law professor, said, “It’s troubling to say, ‘This thing that everybody does has been illegal for 20 years.

“Nobody’s suing people who actually infringe copyrights anymore. Everyone is suing people who make devices,” Lemley said. “The [studios] are going after the creation of new technology.”

A spokeswoman for the studios involved in the MGM suit said that although the studios favor new technological advances, “new technology must go hand in hand with copyright protection.” She declined to comment on the claim that keyword-based recording violates copyrights, focusing instead on ReplayTV 4000’s ability to send shows over the Internet and delete commercials automatically.

The fundamental question posed by the MGM suit is whether the financial effect on the studios trumped consumers’ ability to copy programs for personal use, said Douglas Wood, a New York attorney who specializes in intellectual-property and advertising law. If MGM wins on that point, he said, “We’d be left with plain old VCRs.”

He’s not betting on the studios, though, given the Supreme Court’s 1984 ruling that consumers could legally record programs for the sake of watching them later.

“What difference does it make how I do it?” Wood said. “The dilemma is, the technology is turning the business model upside down. But that doesn’t mean it’s copyright infringement.”