http://www.siliconvalley.com/mld/siliconvalley/3186191.htm
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 -- 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 secretly
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 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.''
