SONICblue , maker of a series of digital video recorders, was ordered this week by a federal magistrate in Los Angeles to reveal the individual viewing habits of its ReplayTV 4000 customers and pinpoint the frequency with which movie and television shows are recorded and electronically shared with other users.
SONICblue’s ReplayTV 4000 has been the
Additionally, the suit contends that SONICblue’s video recorder device, and devices like it, ultimately siphon off programming revenue by enabling consumers to skip over television commercials.
Central District Court Magistrate Charles Eick ordered SONICblue to share its consumer behavior information with the plaintiff and by doing so reveal the patterns of infringement that the technology enables.
SONICblue responded by telling the courts that it does not have this kind of tracking capability and that it would be a serious violation of customer privacy.
In turn, the court ordered SONICblue to develop and install tracking software on the next shipment of ReplayTV 4000 boxes using the auto-update feature. The court has given SONICblue 60 days to comply.
Representatives for SONICblue claim that it would take a minimum of 120 days to comply with the courts order for this new software and asked the court to at least allow them to include an opt-out feature in this imposed software for customers concerned with privacy issues. The court denied the request.
“We think it is an unreasonable imposition on the company to require us to rewrite our software in such a short time,” said Andrew Wolfe, senior vice president and chief technology officer for SONICblue. “It is also an unreasonable imposition on our customers to have us gather up their information and turn it over to a number of third parties.”
Wolfe added that SONICblue would try its best to make this information as anonymous as possible, but there is no guarantee that they will be able to modify the software in such a way as to protect their customers while at the same time obliging the courts.
“The case asserts that our [ReplayTV 4000] technology encourages people to violate copyright, but it doesn’t,” said Wolfe. “If somebody wants to violate copyright law they certainly could do so, just like they can with many other technologies, but we don’t feel that the device itself in any way encourages people to do so.”
In the meantime, free speech advocates are up in arms over yet another move on the part of entertainment conglomerates to clamp down on consumers and force them to buy government-imposed surveillance devices for their home computer systems that ensure U.S. copyright law is honored.
“This is really an unprecedented order,” said Robin Gross, intellectual staff attorney for the Electronic Frontier Foundation, a free speech watch group.
“To require companies to spy on their customers in order to report suspicious activity to the movie studios is a complete invasion of privacy, particularly to those individual customers who don’t even have the option of opting out,” said Gross, likening the suit against SONICblue to the Sony versus Universal Studios Betamax case, a pivotal time in the early 1980s for the VCR industry.
Similarly, the entertainment industry was opposed to the widespread use of VCRs as potential copyright infringement devices. The Sony versus Universal Studios was eventually overturned by the U.S. Supreme Court on the basis that as long as a new technology has substantial non-infringing uses, it could not be held accountable for illicit uses.
“This is the Betamax case all over again,” said Gross, adding that this time the entertainment studios want to sue the digital VCR industry over the same issue of potential copyright infringement versus making a technology available to the general public that is more capable of non-infringing uses.
“Customer have the right to tape shows and watch them later,” said Wolfe. “We think that customers’ rights should be independent of what technology they use to take advantage of those rights.”
SONICblue is expected to ask the trial judge in the case to review the magistrate’s decision. If that proves ineffective, according to Wolfe, the company will look into an appeal process, otherwise SONICblue will be forced to deploy the tracking software at the court’s request.
Representatives for the plaintiffs were not available for comment at press time.
