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In a move aimed at putting pressure on the entertainment industry, the San Francisco-based Electronic Frontier Foundation is suing movie studios and television networks that are pursuing their own litigation to outlaw a recording device that deletes TV commercials. The complaint, filed June 6 in federal court in Los Angeles in behalf of five consumers, seeks a ruling that the individuals can lawfully use the ReplayTV 4000 digital video recorder, made by SonicBlue, to fast-forward through commercials and send copies of programs they record to others. The lead plaintiff in the case is Craig Newmark, founder of Craigslist, a popular community-oriented Web site that started in San Francisco and has spread to several other cities. The litigation is the most recent development in the ongoing dispute over whether technology is being used to infringe copyrighted works. The issue has come to the forefront in the past three years, as new technology has made it easier for consumers to tinker with copyrighted material. Movie studios and TV networks sued SonicBlue in October, claiming that its digital video recorder would deprive them of advertising revenue and thus harm the value of their copyrighted works. Federal Magistrate Judge Charles Eick ordered SonicBlue to submit data as to how ReplayTV owners were using the device. But Los Angeles U.S. District Judge Florence-Marie Cooper later reversed the ruling. The Electronic Frontier Foundation filed the suit “to finally get closure and reduce the apprehension and fear people have about using digital VCRs in their homes,” says Ira Rothken, a solo practitioner in San Rafael, California who is working with EFF on the case. “Plaintiffs can’t afford to wait to be sued.” The 28 motion picture studios and TV networks named as defendants in Newmark v. Turner Broadcasting System quickly dismissed the suit as a publicity stunt. “This complaint mischaracterizes the nature of the case against SonicBlue and ReplayTV,” the entertainment companies said in a statement. “We have never indicated any desire or intent to bring legal action against individual consumers for use of this device.” EFF is seeking to consolidate its suit with that of the industry’s complaint against SonicBlue. The EFF complaint also names SonicBlue Inc. and device manufacturer ReplayTV Inc. — which SonicBlue acquired — as defendants. Rothken says SonicBlue and ReplayTV had to be included in the case in order for the plaintiffs to get full relief. As the device manufacturers, they are “in possession of the statistics and data needed to properly prosecute the case,” he says. Having consumers go after the entertainment industry could be an end-run around the industry’s pending litigation against SonicBlue. The movie studios and TV networks claim in Paramount Pictures v. ReplayTV, 01-9358, that the company is liable for contributory copyright infringement. “Our case is saying users are not infringing on copyright,” says Rothken. “If we win you never get to the case against Replay because you can’t have secondary liability without primary liability.” Laurence Pulgram, a partner at Fenwick & West in Palo Alto, California, who represents SonicBlue, says he had no involvement in the preparation of the EFF suit and that consumers acted independently. “We always knew that SonicBlue was on the side of consumers, and it’s good to have consumers joining us in asserting their rights,” says Pulgram. EFF, as well as many copyright attorneys, contend that the industry’s suit against SonicBlue is similar to Hollywood’s attempt two decades ago to keep Sony’s Betamax videocassette recorder off the market. In 1984, the U.S. Supreme Court ruled, in Sony v. Universal City Studios, 104 S.Ct. 774, that the device did not infringe copyright since it was capable of substantial noninfringing uses. The movie studios and TV companies argue, however, that the ReplayTV device will eliminate advertising revenue necessary to cover the costs of airing programs. EFF says it’s up to the industry to come up with other ways of generating revenue.

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