• ReplayTV Goes Fast Forward
  • March 2, 2004
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • The United States District Court for the Central District of California has dismissed an action brought by five ReplayTV digital video recorder (DVR) owners after 28 entertainment companies promised not to sue for copyright infringement by using the "commercial advance" or "send show" features of their DVRs. The case was brought by the Electronic Frontier Foundation on behalf of the five plaintiffs in June of 2002 in response to the entertainment companies suit against ReplayTV arguing that the device infringes their copyrights. Further, the devices allow viewers to skip commercials. The suit sought a declaratory ruling that using the DVR to skip commercials and send shows between devices is fair use. The court declined, however, to give affirmative relief to all owners of ReplayTV DVRs with the "commercial advance" and "send show" features based on the defendants' promises not to sue. The ruling left open the possibility that relief may be awarded if the entertainment companies do, in fact, sue owners of ReplayTV DVRs.

    Cut to the videotape: the ReplayTV order came almost 20 years to the day after the decision concerning Beta-max and time-shifting, Sony Corp. v. Universal Studios, in which the United States Supreme Court held that: "the average member of the public uses a VTR principally to record a program he cannot view as it is being televised and then to watch it once at a later time. This practice, known as "time-shifting," enlarges the television viewing audience. For that reason, a significant amount of television programming may be used in this manner without objection from the owners of the copyrights on the programs. For the same reason, even the two respondents in this case, who do assert objections to time-shifting in this litigation, were unable to prove that the practice has impaired the commercial value of their copyrights or has created any likelihood of future harm. " Of course, the difference between Betamax and DVR is that with a DVR a viewer can, indeed, view the program as it is being televised.

    The ReplayTV case generated far less interest than the Sony VCR case, and so it may seem that content providers have capitulated to technology. But it may also be that any loss of copyright protection is outweighed by the gain that content providers realize by the information that DVRs allow them to capture about viewers. While viewers are watching TiVo, TiVo may be watching them. TiVo has contracted to provide information to Nielsen Media Research, including the program viewed on a particular TiVo box and the number of times a moment was replayed or a commercial was skipped. The information is transmitted back to TiVo via the same phone line used to download show schedules to the DVR. TiVo insists that no "personal" demographic information is collected. Also, a viewer may "opt out" of having information collected by calling a toll free number provided by TiVo.

    Why This Matters: In the 20 years since the Sony decision, the changes that technology has wrought for copyright have been unforeseen and challenge the very core of such protection. This latest dismissal may indicate that the program content side of the industry has elected to accept, if not embrace, Replay TV and Tivo. What remains to be seen is how the advertising sector addresses the challenge to keep consumers watching commercials, rather than zapping them or finding new innovative ways like product placement to incorporate brand messages.