Liberties Group Sues Studios Over Consumers’ Use of Digital Devices

A civil-liberties group sued the major Hollywood studios and television networks Thursday in a bid to define consumers’ TV-recording rights for the digital age.

In a complaint filed in U.S. District Court in Los Angeles, the Electronic Frontier Foundation asked a federal judge to declare that consumers can use digital recorders to watch shows after they are broadcast, skip all commercials, transmit recordings to members of their households and send copies of free TV broadcasts to anyone on the Internet as long as they are not compensated.

The complaint is a counterpunch to a copyright-infringement lawsuit that 28 studios and networks filed against Sonicblue Inc. and its latest digital video recorder, the ReplayTV 4000. In fact, the foundation wants the two cases merged.

Like other manufacturers’ “personal video recorders,” the ReplayTV 4000 stores TV programs on a hard drive instead of videotape. Unlike its competitors, however, the ReplayTV 4000 can skip commercials automatically when playing back a show, and it can beam shows to other ReplayTV 4000s--two features that enable users to violate copyrights, the entertainment companies say.

Lawyers for the Electronic Frontier Foundation, which focuses on consumer rights in cyberspace, accused the entertainment industry of using the Sonicblue lawsuit to mount an indirect attack on consumers. To win their case, the entertainment companies must prove that consumers don’t have the right to skip commercials or shift copies of their recordings to other devices, said Fred von Lohmann, the foundation’s senior intellectual property attorney.

Consumers “should at least have the right to stand up in court and defend their own activities,” he said.

Representatives of the studios and networks said the foundation’s action distorted the nature of their lawsuit against Sonicblue.

“We have never indicated any desire or intent to bring legal action against individual consumers for use of this device,” the companies said in a joint statement.

Lawyer Robert M. Schwartz, a partner at O’Melveny & Myers who represents the studios, said: “We will show to the court that this device is designed to directly infringe our copyrights and do other things that aren’t fair use. We don’t have to show that individual users are acting improperly.”

The foundation brought its lawsuit on behalf of five ReplayTV 4000 owners who say they use their recorders to limit the commercials their children see, move recordings around their home and even send shows to their laptops--a feature not designed or supported by Sonicblue.

Legal experts said the complaint would not move forward unless the five consumers can show they were at imminent risk of being sued by the studios and networks for copyright infringement.

Lawyers for the foundation said they were simply trying to ensure that consumers could use digital recorders to do things they had grown accustomed to doing with their VCRs. But other copyright lawyers said the legal waters were not that clear, particularly when it comes to sending copies of shows from device to device.

In a landmark 1984 opinion, the Supreme Court rejected the studios’ legal challenge to Sony Corp.’s Betamax VCR and ruled that consumers could record programs for later viewing. But the case did not consider whether consumers could copy a program and send it over the Internet, said J.D. Harriman, a copyright attorney at Coudert Bros. in Los Angeles.

Nor have the courts addressed whether consumers have the right to skip commercials. But Maureen Dorney, a partner at the law firm Gray Cary in Palo Alto, said the studios would be hard pressed to prove consumers were “doing something wrongful because they get up and go to the bathroom.”

“It’s not about the rights of consumers; it’s about the unlawful conduct of the manufacturer of this box,” Schwartz responded. “The manufacturer of this box does not have the right to sell a device that electronically and instantly bypasses the commercials.”

Even if the foundation’s complaint is thrown out, observers agreed, the Sonicblue case could influence what consumers can do with the new digital recorders.

“This case has the potential for making some important law,” Dorney said.