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TiVo Inc. has market presence that companies 10 times its size can only dream of. Its little black box gives viewers control over when they watch their favorite TV shows, making it the iPod of digital video recording. Like Google, TiVo is now a verb. But the company, founded nine years ago and based in Alviso, Calif., has only 400 employees. And just five lawyers, led by general counsel Matthew Zinn. And they probably don’t have a lot of time to watch TV. TiVo’s invention has rocked the broadcasting and advertising industries, spawned patent litigation, and even drawn complaints from privacy advocates. Since becoming general counsel in 2000, Zinn has gone head to head with the Motion Picture Association of America, Major League Baseball, and the National Football League and has negotiated agreements with cable and satellite TV providers, the Federal Trade Commission, and the Federal Communications Commission. Yet Zinn remains low-key, working out of an 8- by 12-foot cubicle filled with TV tchotchkes. “A lot of people think TiVo is a massive media company,” Zinn says. “Everything is smaller about TiVo than one imagines.” And that’s just the way he likes it. Balancing the demands of customers and the attacks from broadcasters, advertisers, regulators, and other critics, Zinn wields little of the dollar or political power of his opponents. Instead he relies on cooperation and compromise to steer TiVo through a thicket of legal obstacles. As the 42-year-old puts it, his greatest accomplishment is that TiVo hasn’t yet “been sued out of existence.” BEATING BACK THE SUITS Zinn jokes about the “love letters” that collect on his desk. These have little to do with love and lots to do with money, he explains, with each saying in essence, “We would love for you to license this patent.” But intellectual property issues are no laughing matter at TiVo. Patent litigation can easily swallow two-thirds of the company’s annual legal budget, and it’s impossible to predict which love letter will turn into a lawsuit. The company receives such a letter every couple of months, largely from what Zinn terms “patent trolls,” companies that don’t make or sell their own products but instead purchase patents, which they then seek to enforce. Zinn says interactive television tends to be a magnet for these cases. “Companies come out of the woodwork,” he says. “You can’t countersue them, because they don’t have a product.” In 2001, Pause Technologies filed a lawsuit accusing TiVo of infringing its patent on rewinding, fast-forwarding, and pausing live TV programs. TiVo, which holds more than 70 patents of its own, won on summary judgment, a ruling upheld last year by the U.S. Court of Appeals for the Federal Circuit. Just last month, TiVo won again. This time the company was on the offensive, alleging infringement of its multimedia “time warping system” by EchoStar Communications Corp. A federal jury sided with TiVo to the tune of $74 million in damages. To keep costs down, Zinn tries to handle in house as much legal work as possible. But he doesn’t pinch pennies when hiring outside counsel. Representing TiVo in the EchoStar case was Morgan Chu of Los Angeles’ Irell & Manella. Chu praises Zinn’s ability to direct TiVo’s legal strategy on a big-picture basis while simultaneously understanding the details of a case. “That’s not something that everyone does,” Chu says. “There are times when the devil is in the details, and being able to grasp them on an ongoing basis can be extraordinarily important.” THE ROAD TO TIVO Zinn got his start in law while pursuing a career in radio. A music journalist and DJ in college, he interned at the FCC and National Public Radio. But he ultimately decided against life on the airwaves. “Unlike college radio,” he says, “in commercial radio you don’t get to choose what songs you play.” Instead he combined his interest in media with law, earning his J.D. from George Washington University Law School. He did time as an associate at Cole, Raywid & Braverman, a Washington boutique firm representing cable operators before the FCC. Before joining TiVo, Zinn was corporate counsel for Continental Cablevision’s western region in Los Angeles and senior attorney for MediaOne in Denver. But when AT&T bought MediaOne, Zinn says the new environment was “too big” and “too unwieldy.” He started looking around for a place where he could “shake things up.” When Zinn joined in 2000, TiVo’s legal department consisted of one patent attorney reporting directly to the chief technology officer. Since then, Zinn has hired Max Ochoa from Cooley Godward, Laurence Denny from Morrison & Foerster, David Fligor from Wilson Sonsini Goodrich & Rosati, and Karen Kramer from the Recording Industry Association of America. His main concern these days, Zinn says, centers on TiVo’s ability to “continue to innovate while negotiating through the seemingly endless obstacles that pop up along the way.” MORE THAN PATENTS Protecting TiVo’s patents is just half the battle. A few years ago, word that an unmarketed feature would allow viewers to skip commercials entirely, rather than just speed through them, angered broadcast advertisers. As part of a compromise, TiVo made it possible for viewers to seek out and record commercials that might be of interest. When TiVo introduced a service allowing viewers to transfer their favorite programs to a PC, copyright holders bristled. Now, with TiVo offering Internet services, it’s getting drawn into the brewing battle among cable, telephone, and Internet companies. Privacy forms another legal front. After Janet Jackson’s mishap during the 2004 Super Bowl halftime show, TiVo reported — to the alarm of privacy advocates — that the “wardrobe malfunction” topped its list of most replayed TV moments. While TiVo can track viewer habits and does provide viewer-specific information to Nielsen Media Research on viewers who’ve agreed to that, it says it typically gathers only anonymous data for audience-measurement purposes. Much of the criticism of its privacy policy is unfounded, according to Zinn. “Nobody reads our privacy policy,” he says. “They just want to take potshots.” Moreover, says Zinn, “We go through enormous heartache and heartburn to stave off privacy issues.” Every two weeks he meets with other top executives to discuss how each new feature fits under the company’s policy. Zinn also says the FTC’s stamp of approval on TiVo’s privacy practices has helped protect the company. TiVo has come a long way since the early days when television networks and other detractors expressed fear over digital video recorders, says Zinn. For him, keeping a cutting-edge company out of trouble is as much a matter of balancing interests as it is of clearing up misconceptions. “It’s OK for there to be a little mystery,” Zinn says. “People read about things and draw their own conclusions. . . . We’re innovators, but we’re also pretty good actors, and at the end of the day I think we have credibility.”
Petra Pasternak is a reporter for The Recorder , an ALM publication in San Francisco where this article first appeared.

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