Order to Monitor Viewing Habits Overturned

In a victory for privacy advocates, a federal judge has overturned an order requiring the maker of ReplayTV digital video recorders to gather data about customers’ TV-viewing habits.

The ruling came in a copyright infringement lawsuit brought by the major Hollywood studios and television networks against Santa Clara, Calif.-based Sonicblue Inc. The studios and networks argue that ReplayTV 4000s enable piracy by letting viewers skip commercials automatically and send copies of programs through the Internet.

A federal magistrate judge had ordered Sonicblue in April to track how its devices were being used, a ruling that raised the hackles of privacy advocates.

In overturning that ruling, U.S. District Judge Florence-Marie Cooper based her ruling on procedural grounds, not privacy issues. When gathering evidence for a lawsuit, she wrote in an order dated Thursday, plaintiffs can’t compel defendants to turn over information that they’re not already collecting.

She added that her ruling doesn’t extend to Sonicblue’s MyReplayTV.com Web site, which collects anonymous information about the programs stored on customers’ recorders.

That information will still have to be turned over to the studios and networks.

Megan Gray, a senior counsel at the Electronic Privacy Information Center, an online civil liberties group, said the order provides “breathing room” for products that safeguard consumers’ privacy. “It gives other companies the ability to consider their users’ privacy without having to worry about whether a court is going to second-guess them,” she said.

But Scott P. Cooper, a lawyer for the studios, argued that the narrowly written order didn’t provide any broad instruction to manufacturers. By ordering Sonicblue to produce the consumer information they’d gained from MyReplayTV.com, he said, the judge was implicitly rejecting Sonicblue’s privacy arguments.

At issue was a federal magistrate’s order instructing Sonicblue to “gather all available information about how users of the ReplayTV employ the devices, including all available information about what works are copied, stored, viewed with commercials omitted, or distributed to third parties.”

Although previous ReplayTV models had collected anonymous data from users, Sonicblue officials said they’d never done so with ReplayTV 4000s. By ruling that Sonicblue doesn’t have to create information about users, Judge Cooper saved the company from having to write new software to monitor its customers, said Laurence F. Pulgram, an attorney for Sonicblue.

Pulgram said the entertainment companies still want the court to order Sonicblue to police users and stop copyright infringements. Scott Cooper replied that Sonicblue has the technical ability to stop recorders from violating copyrights in the ways outlined in the lawsuit.

Also in the ruling, Judge Cooper rejected the studios’ request to withhold from Sonicblue five categories of internal financial documents, business plans and related material.