GLOVES COMING OFF IN REPLAYTV CASE

Electronic Frontier Foundation (EFF), longtime thorn in Hollywood’s side, is among legal eagles representing ReplayTV group. But in legal papers, Hollywood’s lawyers have argued that attorneys who work for EFF, nonprofit legal shop that campaigns for civil liberties on Internet, should not get access to papers designated “highly restricted” in case.

Case is test of legality of ReplayTV PVR that enables TV viewers to make digital copies of copyrighted TV programs. PVR is equipped with commercial-skipping features and has modem enabling users to send copies of recorded programs to other ReplayTV owners via Internet broadband connections.

At outset, 28 Hollywood plaintiffs sued SonicBlue and its ReplayTV subsidiary for contributory copyright infringement and vicarious copyright infringement. Later, 5 owners of ReplayTV PVRs, including Craig Newmark, founder of popular Web site craigslist, filed 2nd action seeking declaratory judgment that their use of PVRs to skip commercials, record content for later viewing or transfer content to their laptop computers for viewing was fair use. Federal district judge consolidated cases in Aug. EFF and Rothken Law Firm of San Rafael, Cal., are representing PVR users.

Content owners’ argument to exclude EFF from case is this: EFF lawyers -- including Cindy Cohn, Robin Gross and Gwen Hinze - - primarily operate as public advocates, in media and before Congress, for anticopyright agenda that is at odds with Hollywood’s efforts to obtain protection for digital content. Thus any pledge they make or protective order they sign that obliges them to keep secret any sensitive and proprietary information gleaned from litigation is too much to ask.

Also, even if EFF lawyers didn’t directly disclose sensitive information, they would use it indirectly in their publicity campaigns. Content owners’ legal documents contend “Were these EFF lawyers to gain access through this litigation to ‘Highly Restricted’ information about, for example, Plaintiff MGM’s business plan for maximizing revenues from DVD distribution, or Plaintiff Time Warner’s analysis of the technical weaknesses of a proposed content security system, that information would inform all of their future lobbying work for EFF. No matter how high their professional integrity, these lawyers, because they are human, cannot forget what they have learned and cannot erect ethical walls within their own brains.”

EFF’s response: Hogwash. Group said it had abided by plenty of court orders in past restricting dissemination of sensitive information, and it would do so here. What Hollywood really is up to, EFF claims, is nothing less than bald attempt to disqualify and thus delete EFF as co-counsel in ReplayTV case.

EFF says that of 105,750 documents already produced in litigation, more than 75% are called “highly restricted.” Thus, EFF wouldn’t be able to review most of key papers in case. Nor could its attorneys meaningfully participate in depositions, prepare briefs or motions involving restricted documents, or assist at portions of trial involving those documents.

What’s in documents that Hollywood doesn’t want EFF to see? Legal papers refer to them in generalities and legalspeak, but it’s known they comprise 5 categories: Confidential business plans, confidential financial information, security and content protection technical documents, Dept. of Justice (DoJ) documents, lobbying documents.

First 3 categories are self-explanatory. DoJ material -- huge trove -- consists of papers produced by plaintiffs to DoJ in connection with 2 video-on-demand ventures -- Movies.com and Movielink/MovieFly. Documents reveal, among other things, correspondence and draft agreements reflecting contemplated transactions with 3rd parties to develop VoD solutions. Also included are security technologies and digital rights management technologies and strategies.

“Lobbying documents” relate to Hollywood’s currently active legislative campaigns, including regulation of VCRs, PVRs and commercial-skipping behavior of consumers. If court rules that EFF is banned from seeing highly restricted documents, Rothken will have to do everything himself -- considered tall order for small law firm.

ReplayTV is one battle in copyright war. Hollywood and EFF have been on opposite sides of no-man’s-land before. That’s what makes current discovery dispute acrimonious. For example, EFF was co-counsel for defendants in trial and appeal of DeCSS case, Universal v. Corley. EFF now is counsel to MusicCity/Streamcast and thus adverse to 28 major movie and recording studios in MGM v. Grokster, pending case in which defendants operate Website that Hollywood claims fosters piracy of copyrighted music. Lately, EFF has been critical of proposed Consumer Broadband and Digital Television Promotion Act that would establish standardized security system to protect digital content distribution from unauthorized use or copying.