ReplayTV Users lead by Craig of Craig's List fame have sued "Hollywood" with the help of EFF for a declaratory judgement that use of ReplayTV is not an infringement of copyright law.

This follows along a theory that I had that one could sue as a class for illegal restraint of trade and anti-trust violation in regards to the DVD CSS scheme.Customers are having DVD player prices artificially inflated by the copyright misuse forcing consumer electronics companies to license and include studio approved technology. In addition, DVD prices are artificially inflated by the force inclusion of region coding in violation of the first sale doctrine and anti trust law. Maybe I should give Joe K a call and see if we can get something started...

Update: After reading the complaint, I agree with it 100% except this prayer for judgement:

71.1.e. Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully use
the Ethernet features provided with the unit for the purpose of
facilitating the viewing by one or more specific individuals of any
television program broadcast free so long as said Plaintiff does not
receive any compensation or direct commercial benefit thereby;

This comes right after a prayer for judgement that those within the household have the right to use the ethernet capability to view recorded shows regardless of location which I agree with is within the scope of fair use. However, 71.1.e. is going to run smack up against a copyright owners exclusive right to publish an owned work. Since we are talking about the protected item in its entirety and generally a lack of education use this one prayer for judgement will not do well under the 4 prong fair use test.

The test is 1. Character of use as to commercial or educational value, 2. Nature of the work itself, 3. The amount of the work in question, 4. The effect of the use on the potential value of the work. This prayer for judgement can only really hang its hat on hard to prove economic questions under 2 and 4. For more on Fair Use try this summary From The Publishing Law Center.

One little nit to add to this. A lot of Hollywood lawyers denegrate the concept of fair use and state that it is not a right but a defense to copyright infringment. This is certainly not what Congress thinks as there are multiple references to "the right of fair use" in Title 17. See Title 17 Chapter 1 Section 108 (f) (4) and Title 17 Chapter 12 Section 1201 (c), and Title 17 Chapter 1 Section 107.

It is also very important to note that Section 107 uses the term "such as" to describe types of fair use.

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