A court has ordered ReplayTV to rewrite its personal video recorder software to include spyware that will observe every click from every customer's remote, gathering personal data detailing what each ReplayTV owner watches, skips, and shares over the Internet. Once in place, the data gathered with this tool will be sent to Hollywood studios and TV networks for use as ammunition in a pending suit against ReplayTV concerning home recording rights. The court has determined that providing this information to the plaintiffs is more important than safeguarding the privacy rights of lawful ReplayTV owners, despite the absence of any ruling or injunction against ReplayTV.
In a discovery motion, the studios demanded that Replay TV turn over all its information about end-user activities, including lists of what individuals are recording, sharing, and what commercials they skip past. When ReplayTV answered that its does not collect personal information about its customers, Magistrate Eick ordered ReplayTV to change its software within 60 days to accomodate the studios' demand. ReplayTV requested that the spyware be implemented on an "opt-in" basis, so that its customers could choose whether their personal habits would be gathered and turned over to the studios, but the Magistrate denied the
Hollywood is seeking to turn back the clock on fair use, establishing a regime where all new technology is subject to an entertainment industry veto. Time and again, the studios have demonstrated their inability to assess the impact of technology on their industry and on society at large. In 1982, Motion Picture Association of America President Jack Valenti testified before Congress that the VCR was to the movie industry as "the Boston Strangler is to a woman walking alone."
Twenty years later, in a turn of events more sad than ironic, Mr. Valenti's employers filed suit on ReplayTV, arguing that "If a ReplayTV customer can simply type 'The X-Files' or 'James Bond' and have every episode of 'The X-Files' and every James Bond film recorded in perfect digital form and organized, compiled and stored on the hard drive of his or her ReplayTV 4000 device, it will cause substantial harm to the market for prerecorded DVD, videocassette and other copies of those episodes and films." In other words, don't let this technology disrupt the VCR, since our business depends on it.