ARTS & FARCES internet

Imagine a scenario where the electronic media you watch—and more importantly, how you watch it—is closely monitored. If you own a ReplayTV 4000, that’s exactly the scenario you’re going to find yourself in. ReplayTV 4000 is a digital video recorder. It works similarly to a VCR except it records video and audio to a hard disk instead of tape.

In the ongoing battle between the technology and entertainment industries, the media companies struck a decisive blow late last week when they somehow managed to get Federal Magistrate Judge Charles Eick to order Sonicblue to monitor the television viewing habits of its customers.

Specifically, Sonicblue, the manufacturer of ReplayTV 4000, has 60 days to:

• Gather all available information about how users of the ReplayTV employ the devices, including all available information about what works are copied, stored, viewed with commercials omitted, or distributed to third parties.
• Provide the foregoing data to Plaintiffs in a readily-understandable electronic format and provide any technical assistance that may be necessary for Plaintiffs to review the data.

What’s wrong with this picture?

First of all, the court ruled that Sonicblue has to provide its adversaries with the information the latter needs to pursue its case against the former. If that’s not bad enough, the ruling mandates that Sonicblue undertake a significant market research effort on the behalf of its adversaries.

And just who are these adversaries? Oh, only AOL-Time Warner, MGM Studios, Orion Pictures, 20^th Century Fox, Paramount Pictures, Disney, NBC, ABC, CBS, Showtime, HBO, Viacom, Columbia Pictures, and Tristar among others.

Judge Eick was careful to try to make the cost of the undertaking equitable; the plaintiffs were ordered to pay 75% of the cost of gathering the information. But no mention was made of the value (or inherent lack thereof) of the individual privacy that will be sacrificed in this effort. Typical and predictable lipservice were paid to individual privacy, of course, in that the data collected will not be personally identifiable, although the behavior of each user will be identified with a unique code.

What’s especially disturbing is that this case—the television networks and the movie studios are actually suing a technology manufacturer for manufacturing a product of which they don’t approve—is that such actions will be unnecessary if legislation like the proposed Consumer Broadband and Digital Television Promotion Act (CBDTPA) becomes law.

On its face, the claim by the television networks and movie studios—that ReplayTV 4000 enables people to steal television shows—is specious. Sony Corp. v. Universal City Studios, commonly known as the “Betamax case,” resolved that issue in 1983. The U.S. Supreme Court ruled that individuals have the right to “time shift” media by recording programs for later use.

Privacy advocates were quick to condemn the Sonicblue ruling. “It’s essentially the judiciary inserting themselves into the marketplace and requiring private companies to act as big brother or agents of big brother to monitor people,” Megan Gray, an Electronic Privacy Information Center (EPIC) attorney, told Wired News. Fred von Lohmann, an Electronic Frontier Foundation (EFF) senior staff attorney, added broader concerns in an interview with the San Jose Mercury News: “It’s an incredible invasion of privacy. But second—and equally important—is what the Electronic Frontier Foundation and others have been saying was going to happen now for some time. Basically, under the guise of copyright laws, courts are going to be put in a position of telling technology companies how to build their products.”

In a completely unrelated but relevant event, Jupiter Media Metrix released a report indicating that users of Internet-based file sharing systems buy more recorded music than their non-sharing peers. The report states that users of file-sharing systems are 41% more likely than the average music fan to have increased their spending on recorded music.