MPAA, STUDIOS FACE 2 COPYRIGHT SUITS

MPAA issued strong response to EFF suit, calling it “nothing more than a publicity stunt.” Assn. said its suit against SonicBlue isn’t about “individual users. We have never indicated any desire or intent to bring legal action against individual consumers for use of this device… Any complaint that consumers may have is with SonicBlue and Replay.”

“This case really is the Betamax case for the digital era,” EFF Intellectual Property Attorney Robin Gross said in describing ReplayTV case, comparing it with 2-decade-old decision that addressed fair use with home recordings. Five plaintiffs in case -- Craig Newmark, Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright -- are Cal. residents who own ReplayTV 4000 units and want to protect their fair use rights out of concern that current SonicBlue case could undermine them. Despite consumer plaintiffs, von Lohmann said it was not class action case and EFF had no intention of it becoming one. Case was filed in U.S. Dist. Court, L.A., same court handling the existing SonicBlue case. Lead attorney Ira Rothken said he would meet next week with studio representatives to ascertain whether 2 cases could be consolidated; if not, he said, he would ask court to do so without studios’ consent. Rothken said EFF case sought through declaratory judgment to preemptively protect consumers who could be deemed criminals if SonicBlue lost its case. As result, Rothken said, if they weren’t consolidated “our case could even be tried first.”

None of 5 consumers suing studios claimed in conference call with reporters that they actually sent digital content to others, one concern raised by studios in existing suit. Von Lohmann said case they filed didn’t directly address file sharing, but said he believed studios in original suit were trying to suggest that only use of ReplayTV was to send The Sopranos to someone who didn’t subscribe to HBO. However, one plaintiff did say he used 3rd-party equipment to remove content from ReplayTV device to view on his laptop computer when traveling. Several plaintiffs have children and said they liked to delete commercials from children’s programming recorded on their Replay devices. Both Gross and von Lohmann said one motivator for case was recent comment by Turner Bcstg. CEO Jamie Kellner that consumers had contractual obligation to view commercials to support TV, but perhaps could take bathroom breaks. “There is no legal requirement that we watch commercials,” Gross said, so broadcasters “are going to have to come up with new business models.” Von Lohmann said: “I'm confident Hollywood will be able to adjust their business model to this new technology.

Consumers aren’t being represented in SonicBlue case, von Lohmann said. If court is going to decide consumer fair use rights for digital content in SonicBlue, he said, “for goodness sakes, they should have the right to stand up in court and defend themselves.” Declaratory judgment being sought would be one way to protect consumers regardless of how original SonicBlue case is resolved, he said, but “if the studios came forward” and said uses outlined in new case were legitimate, “I'm willing to say, ‘Okay, judge, we don’t have a case.'” Another concern, he said, is possibility that judge could order SonicBlue to download DRM software to all ReplayTV 4000 boxes, thus changing nature of product consumers already had purchased. Suit urges court to “clarify [plaintiffs'] rights, to ascertain which of their activities and functions of the ReplayTV 4000 unit are lawful under the Copyright Act and the First Amendment, to ascertain which activities and functions cannot serve as a basis for liability and damages against them, and to prevent defendants from interfering with plaintiffs’ ongoing enjoyment and use of their ReplayTV 4000 units through, or as a result of, injunctive relief in the ReplayTV case.”

House Judiciary Courts, Internet & Intellectual Property subcommittee Wed. was told by CenterSpan Communications CEO Frank Hausmann that Congress should consider bill that “carves out a digital fair use ’safe harbor’ to statutorily and affirmatively delineate consumer rights,” position that drew interest of Rep. Lofgren (D-Cal.). Same day, coalition of tech executives named Americans for Technology Leadership called on Subcommittee Chmn. Coble (R-N.C.) to ensure that Congress “not stifle the imaginative and creative technology development through legislation and regulation.”

Web Site Sues MPAA

InternetMovies.com filed in U.S. Dist. Court, Honolulu, in response to cease-and-desist orders in 2001 from MPAA when latter accused Web site of distributing unauthorized copies of copyrighted movies. (Suit was filed April 25 but was not publicized by company until recently.) “InternetMovies.com does not and has never distributed unauthorized copyrighted motion pictures,” company said, but as result of MPAA’s allegations it had its Web site shut down temporarily, which “had a negative effect on the business proceedings and reputation of InternetMovies.com.” Founder Michael Rossi said his site merely provided articles about movie industry and links to movie trailers that guided surfers to studio sites.

MPAA has made use of copyright “bot” that scans Internet for copyrighted material (software is called “Ranger") and any evidence of copyrighted material found on site generates cease- and-desist letter. New group affiliated with EFF contended that many of those letters, including some from MPAA, were erroneous, and it had created Web site (www.chillingeffects.org) to monitor them.