January 12, 2004 12:40 PM PST

Judge deletes suit by ReplayTV owners

A federal judge has dismissed a lawsuit that five ReplayTV owners filed against Hollywood studios that sought to secure the right to use the product's features to skip commercials and share recordings.

U.S. District Judge Florence-Marie Cooper on Friday tossed out the lawsuit, brought by the Electronic Frontier Foundation and attorney Ira Rothken, saying owners of the personal video recorders no longer had an immediate and legitimate fear of being sued, after the studios pledged in August not to do so.

Cooper also noted that an earlier lawsuit about two dozen entertainment companies filed against ReplayTV's manufacturer at the time, Sonicblue, was also dismissed.

The ReplayTV owners' "claims are moot," Cooper concluded in a 14-page ruling.

"The court said that as long as the entertainment companies have promised not to sue the five original ReplayTV owners, and as long as they're not suing Sonicblue, there's not a sufficient basis for the lawsuit addressing the concerns of the remaining ReplayTV owners," EFF Legal Director Cindy Cohn said. The judge also denied EFF's request to expand its legal claim into a class-action lawsuit against the entertainment companies.

EFF's clients in this case included ReplayTV owners Craig Newmark (founder of the Craigslist community site), Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright.

The history of the intertwined lawsuits is convoluted. Originally, the entertainment companies filed a copyright infringement lawsuit against Sonicblue and ReplayTV, based on the recording device's ability to skip commercials and to share TV programs with other ReplayTV owners. After the lawsuit was filed, Sonicblue sold ReplayTV to another company, Digital Networks North America, which offers a new model without those two controversial features.

With the court's approval, the Hollywood firms and Sonicblue--which filed for bankruptcy protection--agreed to dismiss the case on Nov. 12.

This is not the first time the EFF has been dealt a setback in a case seeking a "declaratory judgment" against entertainment companies. In November 2001, a federal judge in New Jersey dismissed a case filed on behalf of Princeton University professor Ed Felten, saying EFF's arguments against the Digital Millennium Copyright Act should "be pursued in the halls of the legislature until they have a real case or controversy to bring before this court."


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