SonicBlue ordered to track ReplayTV users'

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BlankPosted on Thu, May. 02, 2002   
 
SonicBlue ordered to track ReplayTV users' viewing choices
By Dawn C. Chmielewski
Mercury News

 
A federal magistrate in Los Angeles has ordered SonicBlue to spy on thousands of digital video recorder users -- monitoring every show they record, every commercial they skip and every program they send electronically to a friend.

Central District Court Magistrate Charles F. Eick told SonicBlue to gather ``all available information'' about how consumers use the Santa Clara company's latest generation ReplayTV 4000 video recorders, and turn the information over to the film studios and television networks suing it for contributing to copyright infringement.

``We've been ordered to invade the privacy of our customers,'' said Ken Potashner, SonicBlue's chairman and chief executive. ``This is something that we find personally very troubling.''

Privacy advocates condemned the ruling which came during the pre-trial discovery process of a series of lawsuits against SonicBlue.

Last October, the studios and networks accused SonicBlue of permitting copyright-infringement with its latest digital video recorder. The machines work like a VCR but record to a hard drive instead of video tape.

The plaintiffs asked SonicBlue to turn over information on how individuals use the recording devices. SonicBlue said it does not track that information. The magistrate, who is supervising discovery, ordered the company to write software in the next 60 days that would record every ``click'' from every customer's remote control.

Four separate lawsuits focus on a pair of features on the ReplayTV 4000: an ``AutoSkip'' function that allows the device to bypass commercials while recording a program and a high-speed Internet port that allows users to download programs from the Internet or send them to other ReplayTV 4000 users.

The suits allege these features effectively deprive networks of the means of paying for their programs -- advertising revenue. And they allow people who paid for premium programming -- say HBO's ``Six Feet Under'' -- to send it to consumers who haven't.

A Disney spokeswoman accused SonicBlue of a ``deliberate and completely misleading'' characterization of the court's order. The studios and networks are merely seeking access to the same kind of anonymous data that SonicBlue's privacy policy says it is entitled to collect about its users, she said.

Attorneys for the studios say they need this information to determine the extent to which the ReplayTV 4000 allows consumers to steal copyrighted movies and television shows.

``None of the data the plaintiffs are seeking identifies any individuals,'' said Michelle Bergman, the Disney spokeswoman. ``We respect viewer privacy and the order we obtained respects that important right. We are simply protecting our copyrighted content and all whose livelihoods are dependent on it.''

SonicBlue said it stopped collecting anonymous user data in May 2001, after a furor erupted over competitor TiVo's practice of gathering information about its users' viewing habits. TiVo's machine would collect viewing data and send it over a phone line back to the company.

The ruling requires SonicBlue to conduct the kind of surveillance it never anticipated in the privacy policy it outlined to its subscribers, said Laurence Pulgram, the San Francisco attorney representing SonicBlue.

Court documents, which Pulgram provided, show that SonicBlue would be required to document which shows users copy, store and view; what commercials they skip and which programs they send to other users, through the ``Send Show'' feature.

The court ruling also requires SonicBlue to track individual users -- not by name, but through ``unique identification numbers.''

``The concern is once you collect information about an individual, the individual may be concerned that he or she could be linked to that information at some time,'' said Pulgram.

Privacy advocates said the ruling is a more egregious invasion of privacy than TiVo what committed. In that case, TiVo collected aggregated data that was purposefully separated from personal details about the viewer. And consumers could opt-out, keeping their viewing habits from being collected. 

ReplayTV users won't have that choice.

`It's an incredible invasion of privacy,'' said Fred von Lohmann, an intellectual property expert for the Electronic Frontier Foundation. ``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.''

Pulgram said SonicBlue plans to ask the federal district court trial judge to review the magistrate's ruling.

``We respect Judge Eick's decision on this and on numerous issues he had before him at the time,'' said Pulgram. `But in our view, it is an unprecedented intrusion into the privacy of TV viewers.''


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Contact Dawn C. Chmielewski at dchmielewski at sjmercury.com or (800) 643-1902  




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