Industry heavyweights sue blurb-buster Replay

E-mailing of TV shows, commercial deletion irks companies

Multiple entities in the Disney, Viacom and NBC companies filed a joint lawsuit Wednesday against digital recording service ReplayTV and its parent company, SonicBlue, over new Replay features that allow the emailing of TV programs and the automatic deletion of commercials during playback (Variety, Aug. 26) .

The companies — including ABC, Showtime, Paramount, UPN and CBS, all part of media conglomerates, some of whom have invested in Replay — seek to prevent Replay and SonicBlue from selling two new devices, the ReplayTV 4000 and SonicBlue’s DDV 2120 dual-deck VCR. Other companies, which could include Fox and the WB, may be added to the suit. TiVo investor Sony is not part of the action.

The suit comes on the eve of SonicBlue’s announcement today of its quarterly earnings. Filed in federal court in Los Angeles, the suit claims the devices violate the Copyright Act, the Communications Act and California law. The dual-deck VCR is available at retail stores now. The Replay 4000 will ship next month.

The lawsuit also claims the devices “enable, assist and induce” users to make unauthorized digital copies of copyrighted TV programs for the purpose of viewing shows without commercials at the touch of a button. That, the suit says, harms the potential market and value of TV programming since commercials are a “crucial (and often sole)” source of revenue.

The suit also says the devices make it too easy to make perfect digital copies of copyrighted programming, including movies, for distribution by high-speed Internet, which deprives producers and distributors of payment for the programming.

According to the suit, these issues are radically different from those associated with VCR recordings of over-the-air programming, which the Supreme Court ruled permissible in 1984, since they deprive copyright holders of the fundamental means of generating revenue.

A spokeswoman for NBC said that the company does not dispute the 1984 ruling allowing “fair use” of recorded programs for playback in the home at a more convenient time.

But she said that the new machines go above and beyond fair use in allowing consumers to distribute programs by email, which the litigants say will undercut subscription services like Showtime, HBO and pay-per-view programs.

Although consumers may fast-forward through and skip commercials during playback with current VCRs and digital video recorders, the new devices do not allow viewers an opportunity to view them at all, she said.

Andy Wolfe, chief technology officer for Replay/SonicBlue, said the devices simply use technology to “make it easier for people to do things they are already doing anyway.”

Customers must still choose whether to skip commercials or not, he said, noting that the skipping of commercials can only be done when a show is being watched on a delayed basis.

Wolfe said Replay/Sonic intends to work with studios and TV distributors as partners in using the technology to offer subscription services for programming that is not readily available on TV. It’s unlikely that many consumers will have the necessary high-speed Internet connections or patience to send shows to their friends via email anytime soon, he added.

Given today’s Internet connections, a half-hourlong show will take roughly three hours to download, once received on a ReplayTV device. Most Internet service providers wouldn’t allow shows to be emailed to its subscribers due to the size of the files.

However, ReplayTV is anticipating some consumers to adopt the gimmick and will limit them to only distrib an episode of a show to another ReplayTV owner 15 times.

The product also supports digital rights copy protection technology made by Macrovision, giving broadcasters the option to restrict consumers from sending copies of a show Webwide.

It is more likely that the technology will sooner be adaptable for program distributors to deliver content to select customers on a subscription basis for playback at their convenience, the way rival TiVo instantly records certain programs for its customers.

A spokeswoman for Viacom said the company made what is now a very small investment in Replay through Showtime at a time when Replay was working within traditional copyright parameters. NBC said the company’s investment was made “at a time when this technology didn’t exist.”

Disney could not be reached for comment beyond the joint statement reiterating points in the lawsuit.

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