Ira P. Rothken, Esq. (State Bar No. 160029)
ROTHKEN LAW FIRM
1050 Northgate Drive, Suite 520
San Rafael, CA  94903
Telephone: 	(415) 924-4250
Facsimile:  (415) 924-2905

Cindy A. Cohn, Esq. (State Bar No. 145997)
Fred von Lohmann, Esq. (State Bar No. 192657)
Robin D. Gross, Esq. (State Bar No. 200701)
ELECTRONIC FRONTIER FOUNDATION
454  Shotwell Street
San Francisco, CA 94110
Telephone:  (415) 436-9333 x108
Facsimile: (415) 436-9993

Attorneys for Plaintiffs Craig Newmark, Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CRAIG NEWMARK, SHAWN HUGHES, KEITH OGDEN, GLENN FLEISHMAN and PHIL WRIGHT, 

		Plaintiffs,

		v.

TURNER BROADCASTING SYSTEM, INC.; DISNEY ENTERPRISES, INC.; PARAMOUNT PICTURES CORPORATION; NATIONAL BROADCASTING COMPANY, INC.; NBC STUDIOS, INC.; SHOWTIME NETWORKS INC; THE UNITED PARAMOUNT NETWORK; ABC, INC.; VIACOM INTERNATIONAL INC.; CBS WORLDWIDE INC.; CBS BROADCASTING INC.; TIME WARNER ENTERTAINMENT COMPANY, L.P.; HOME BOX OFFICE; WARNER BROS.; WARNER BROS. TELEVISION; TIME WARNER INC.; NEW LINE CINEMA CORPORATION; CASTLE ROCK ENTERTAINMENT; THE WB TELEVISION NETWORK PARTNERS, L.P.; METRO-GOLDWYN-MAYER STUDIOS; ORION PICTURES CORPORATION; TWENTIETH CENTURY FOX FILM CORPORATION; UNIVERSAL CITY STUDIOS PRODUCTIONS, INC.; FOX BROADCASTING COMPANY; COLUMBIA PICTURES INDUSTRIES, INC.; COLUMBIA PICTURES TELEVISION, INC.; COLUMBIA TRISTAR TELEVISION, INC.; TRISTAR TELEVISION, INC.; REPLAYTV, INC.; and SONICBLUE, INC.

		Defendants.
			CASE NO.

COMPLAINT FOR COPYRIGHT DECLARATORY RELIEF

JURISDICTION AND VENUE
1.	This court has subject matter jurisdiction over the federal claims pursuant to the Copyright Act (17 U.S.C. §§ 101 et seq.), 28 U.S.C. §§ 1331 and 1338 and the Declaratory Judgment Act (28 U.S.C. § 2201).  This court has supplemental subject matter jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(a) in that the state law claims form part of the same case or controversy as the federal claims.
2.	Plaintiffs are informed, believe and thereon allege that defendants, and each of them, have sufficient contacts with this district generally and, in particular, with the events herein alleged, that each such defendant is subject to the exercise of jurisdiction of this court over the person of such defendant and that venue is proper in this judicial district.
3.	Plaintiffs are informed, believe and thereon allege that, based on the places of businesses of the defendants identified above and/or on the national reach of defendants, and each of them, a substantial part of the events giving rise to the claims herein alleged occurred in this district and that defendants, and each of them, and/or an agent of each such defendant, may be found in this district.

INTRODUCTORY STATEMENT

4.	Plaintiffs Craig Newmark, Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright are each a consumer owner of a Digital Video Recorder ("DVR") in the 4000 series manufactured and sold by ReplayTV, Inc. and SONICblue, Inc. (collectively "ReplayTV").   Regardless of the particular model, each such DVR is identified as a "ReplayTV 4000" herein.  Owners of the ReplayTV 4000 unit have been publicly accused of “theft” of copyrighted materials, threatened with invasions of privacy and ruinous litigation, and threatened with the loss of beneficial use of their ReplayTV 4000s by the defendants other than ReplayTV (collectively identified as the "Entertainment Oligopoly defendants" herein).  The Entertainment Oligopoly defendants have brought an action in this court, consolidated under the name "Paramount Pictures Corporation et. al., Plaintiffs, v. ReplayTV, Inc., et. al.," Case No. CV 01-9358 FMC (Ex) ("ReplayTV case"), against Replay TV based upon the allegation that Plaintiffs and others similarly situated are infringing their copyrights. That action seeks injunctive relief that would directly and materially injure Plaintiffs in their use and enjoyment of their ReplayTV 4000 units, since it would prevent ReplayTV from providing support to the units and from "permit[ting] users" from sharing shows.  
5.	The Entertainment Oligopoly defendants' case against ReplayTV is predominantly based on secondary theories of liability (namely contributory infringement and vicarious liability). In order to prevail on these theories, the Entertainment Oligopoly defendants must prove that the activities of ReplayTV 4000 owners constitute direct copyright infringement, since there can be no secondary liability in the absence of direct infringement. Accordingly, a victory by the Entertainment Oligopoly defendants in the ReplayTV case will necessarily require a determination that the activities of ReplayTV 4000 owners constitute direct copyright infringement. Plaintiffs are informed, believe and thereon allege that the ReplayTV case is intended by the Entertainment Oligopoly defendants in part to secure a legal precedent that can be used against the Plaintiffs and other similarly situated ReplayTV 4000 owners.
6.	Further, the Entertainment Oligopoly defendants have accused Plaintiffs and others similarly situated, in newspapers, magazines, radio, television, court complaints, and discovery motions, of "stealing" and “theft” for using the commercial advance feature to avoid commercials while watching television shows, for space-shifting television shows, and time-shifting television shows. These accusations chill Plaintiffs’ fair use rights and adversely impact their First Amendment rights. The Entertainment Oligopoly defendants have sought to use the Courts to get the names and contact information of Plaintiffs and other owners of the ReplayTV 4000 and have attempted to track their use in an effort to gather evidence of copyright infringement and damages. 
7.	Plaintiffs, having learned of the Entertainment Oligopolies' accusations of theft and copyright infringement against them in the press and in official court filings in the ReplayTV case, having learned of the attempt to track and record their personal viewing habits, and having learned of the attempt to learn the specific identities and addresses of ReplayTV 4000 users, have a reasonable apprehension that the Entertainment Oligopoly defendants intend to sue owners of the ReplayTV 4000 units for copyright infringement and “theft” of television shows.  As a result of these public claims against them, Plaintiffs have been chilled in their ongoing use of their ReplayTV 4000 units and fear imminent loss of use of their ReplayTV 4000 units and exposure to litigation.  
8.	 Moreover, having learned of the Entertainment Oligopolies prayer for broad injunctive relief in the ReplayTV case, Plaintiffs believe that the outcome of the ReplayTV case presents a realistic danger of creating a direct injury to them in their ongoing use and enjoyment of their ReplayTV 4000 units.
9.	Accordingly, Plaintiffs bring this Complaint and declaratory action to clarify their rights, to ascertain which of their activities and functions of the ReplayTV 4000 unit are lawful under the Copyright Act and the First Amendment, to ascertain which activities and functions cannot serve as a basis for liability and damages against them, and to prevent Defendants from interfering with Plaintiffs’ ongoing enjoyment and use of their ReplayTV 4000 units through, or as a result of, injunctive relief in the ReplayTV case. Plaintiffs reserve the right to amend the Complaint to enjoin the ReplayTV defendants from materially discontinuing support without restitution and notice to Plaintiffs and impacted consumers for features of the ReplayTV 4000 unit that were material inducements for purchases of the units by Plaintiffs and other owners and that were prominently displayed in past and continuing advertising as reasons to purchase the ReplayTV 4000 unit.  
PARTIES
10.	Plaintiff CRAIG NEWMARK is a resident of the State of California and the founder of the popular San Francisco Bay Area "craigslist.org" community website.  Plaintiff Newmark uses his ReplayTV 4000 unit for viewing television programs at times other than when originally broadcast ("time-shifting") and wants to use the advertised features that would allow him to view recorded programs on his laptop computer while traveling and to utilize "commercial advance" to avoid watching  commercials. He has tested the use of his ReplayTV 4000 to send shows between devices within his home and intends to use the send show feature to move programs to his laptop computer for his viewing while traveling.  Notwithstanding the allegations of the Entertainment Oligopoly defendants in the ReplayTV case, plaintiff Newmark has not used the ReplayTV 4000 unit to violate Section 553 of the Communications Act by unauthorized interception or receipt of cable service or by assisting in unauthorized interception or receipt of cable service.  All uses by plaintiff Newmark of the ReplayTV 4000 unit are intended to be lawful and plaintiff Newmark has not violated Section 605 of the Communications Act by unauthorized publication or use of encrypted communications transmitted over wire or by radio.
11.	Plaintiff SHAWN HUGHES is a resident of the State of Georgia and the owner of an electrical contracting company.  Plaintiff Hughes uses his ReplayTV 4000 units to record educational and entertainment programs for his children and to control the advertising they are exposed to.   He also uses them to send shows between his two units and between his units and his laptop computer for viewing outside his home. Notwithstanding the allegations of the Entertainment Oligopoly defendants in the ReplayTV case, plaintiff Hughes has not used the ReplayTV 4000 unit to violate Section 553 of the Communications Act by unauthorized interception or receipt of cable service or by assisting in unauthorized interception or receipt of cable service.  All uses by plaintiff Hughes of the ReplayTV 4000 unit are intended to be lawful and plaintiff Hughes has not violated Section 605 of the Communications Act by unauthorized publication or use of encrypted communications transmitted over wire or by radio.
12.	Plaintiff KEITH OGDEN is a resident of the State of California, the recipient of an MBA degree from Stanford University and a self‑employed securities broker dealer in the San Francisco Bay Area.  Plaintiff Ogden uses his ReplayTV 4000 unit for purposes of time-shifting and avoidance of commercials. Notwithstanding the allegations of the Entertainment Oligopoly defendants in the ReplayTV case, plaintiff Ogden has not used the ReplayTV 4000 unit to violate Section 553 of the Communications Act by unauthorized interception or receipt of cable service or by assisting in unauthorized interception or receipt of cable service.  All uses by plaintiff Ogden of the ReplayTV 4000 unit are intended to be lawful and plaintiff Ogden has not violated Section 605 of the Communications Act by unauthorized publication or use of encrypted communications transmitted over wire or by radio.
13.	Plaintiff GLENN FLEISHMAN is a resident of the State of Washington and a freelance journalist whose work has appeared in the New York Times, Wired Magazine and publications in the Seattle area.  Plaintiff Fleishman uses his ReplayTV 4000 unit for purposes of time‑shifting and avoidance of commercials. Notwithstanding the allegations of the Entertainment Oligopoly defendants in the ReplayTV case, plaintiff Fleishman has not used the ReplayTV 4000 unit to violate Section 553 of the Communications Act by unauthorized interception or receipt of cable service or by assisting in unauthorized interception or receipt of cable service.  All uses by plaintiff Fleishman of the ReplayTV 4000 unit are intended to be lawful and plaintiff Fleishman has not violated Section 605 of the Communications Act by unauthorized publication or use of encrypted communications transmitted over wire or by radio.
14.	Plaintiff PHIL WRIGHT is a resident of the State of California employed in the video editing technology industry.  Plaintiff Wright uses his ReplayTV 4000 unit for purposes of time-shifting and avoidance of commercials. Notwithstanding the allegations of the Entertainment Oligopoly defendants in the ReplayTV case, plaintiff Wright has not used the ReplayTV 4000 unit to violate Section 553 of the Communications Act by unauthorized interception or receipt of cable service or by assisting in unauthorized interception or receipt of cable service.  All uses by plaintiff Wright of the ReplayTV 4000 unit are intended to be lawful and plaintiff Wright has not violated Section 605 of the Communications Act by unauthorized publication or use of encrypted communications transmitted over wire or by radio.
15.	Each Plaintiff has a personal stake in the issues involved in this litigation and has a reasonable apprehension of being sued by the Entertainment Oligopoly defendants for copyright infringement and “theft” of television shows.  Each Plaintiff is participating in this litigation to protect his own interests, and to protect the interests of other owners of ReplayTV 4000 units who are threatened by the actions of the Entertainment Oligopoly defendants.
16.	Each Plaintiff faces the direct risk of the loss of beneficial use of his personal property, the ReplayTV 4000, if the injunctive relief prayed for by the Entertainment Oligopoly defendants in the ReplayTV case is granted.  
17.	 Plaintiffs are informed, believe and thereon allege that defendant TURNER BROADCASTING SYSTEM, INC. is a Georgia corporation with its principal place of business in Atlanta, Georgia and that defendant TURNER BROADCASTING SYSTEM, INC. engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
18.	Plaintiffs are informed, believe and thereon allege that defendant DISNEY ENTERPRISES, INC. is a Delaware corporation with its principal place of business in Burbank, California.
19.	Plaintiffs are informed, believe and thereon allege that defendant PARAMOUNT PICTURES CORPORATION is a Delaware corporation with a principal place of business in Los Angeles, California.
20.	Plaintiffs are informed, believe and thereon allege that defendant NATIONAL BROADCASTING COMPANY, INC. is a Delaware corporation with studio facilities in Burbank, California.
21.	Plaintiffs are informed, believe and thereon allege that defendant NBC STUDIOS, INC. is a New York corporation with its principal place of business in Burbank, California.
22.	Plaintiffs are informed, believe and thereon allege that defendant SHOWTIME NETWORKS INC. is a Delaware corporation with a principal place of business in New York, New York and that said defendant engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
23.	Plaintiffs are informed, believe and thereon allege that defendant THE UNITED PARAMOUNT NETWORK is a Delaware corporation with a principal place of business in Los Angeles, California.
24.	Plaintiffs are informed, believe and thereon allege that defendant ABC, INC. is a New York Corporation with a principal place of business in New York, New York and that said defendant engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
25.	Plaintiffs are informed, believe and thereon allege that defendant VIACOM INTERNATIONAL INC. is a Delaware Corporation with a principal place of business in New York, New York and that said defendant engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
26.	Plaintiffs are informed, believe and thereon allege that defendant CBS WORLDWIDE INC. is a Delaware Corporation with a principal place of business in New York, New York and that said defendant engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
27.	Plaintiffs are informed, believe and thereon allege that defendant  CBS BROADCASTING INC. is a New York Corporation with a principal place of business in New York, New York and that said defendant engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
28.	Plaintiffs are informed, believe and thereon allege that defendant TIME WARNER ENTERTAINMENT COMPANY, L.P. is a Delaware limited partnership with a principal place of business in New York, New York and that said defendant engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
29.	Plaintiffs are informed, believe and thereon allege that defendant HOME BOX OFFICE is a division of defendant TIME WARNER ENTERTAINMENT COMPANY and that defendant HOME BOX OFFICE engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
30.	Plaintiffs are informed, believe and thereon allege that defendant WARNER BROS. is a division of defendant TIME WARNER ENTERTAINMENT COMPANY and that defendant WARNER BROS. engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
31.	Plaintiffs are informed, believe and thereon allege that defendant WARNER BROS. TELEVISION is a division of defendant TIME WARNER ENTERTAINMENT COMPANY and that defendant WARNER BROS. TELEVISION engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
32.	Plaintiffs are informed, believe and thereon allege that defendant TIME WARNER INC.  is a Delaware corporation with its principal place of business in New York, New York, an affiliate of defendant TIME WARNER ENTERTAINMENT COMPANY and that defendant TIME WARNER INC. engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
33.	Plaintiffs are informed, believe and thereon allege that defendant NEW LINE CINEMA CORPORATION is a Delaware corporation with its principal place of business in Los Angeles, California.
34.	Plaintiffs are informed, believe and thereon allege that defendant CASTLE ROCK ENTERTAINMENT is a California general partnership with its principal place of business in Beverly Hills, California.
35.	Plaintiffs are informed, believe and thereon allege that defendant THE WB TELEVISION NETWORK PARTNERS, L.P. is a California limited partnership d/b/a The WB Television Network and that defendant THE WB TELEVISION NETWORK PARTNERS, L.P. engages in substantial business in this judicial district and maintains substantial contacts within this judicial district.
36.	Plaintiffs are informed, believe and thereon allege that defendant METRO-GOLDWYN-MAYER STUDIOS is a Delaware corporation with its principal place of business in Santa Monica, California.  
37.	Plaintiffs are informed, believe and thereon allege that defendant ORION PICTURES CORPORATION is a Delaware corporation with its principal place of business in Santa Monica, California.  
38.	Plaintiffs are informed, believe and thereon allege that defendant TWENTIETH CENTURY FOX FILM CORPORATION is a Delaware corporation with its principal place of business in Los Angeles, California.  
39.	Plaintiffs are informed, believe and thereon allege that defendant UNIVERSAL CITY STUDIOS PRODUCTIONS, INC. is a Delaware corporation with its principal place of business in Universal City, California.  
40.	Plaintiffs are informed, believe and thereon allege that defendant FOX BROADCASTING COMPANY is a Delaware corporation with its principal place of business in Los Angeles, California.  
41.	Plaintiffs are informed, believe and thereon allege that defendant COLUMBIA PICTURES INDUSTRIES, INC. is a Delaware corporation with its principal place of business in Culver City, California.  
42.	Plaintiffs are informed, believe and thereon allege that defendant COLUMBIA PICTURES TELEVISION, INC. is a Delaware corporation with its principal place of business in Culver City, California.  
43.	Plaintiffs are informed, believe and thereon allege that defendant COLUMBIA TRISTAR TELEVISION, INC. is a Delaware corporation with its principal place of business in Culver City, California.  
44.	Plaintiffs are informed, believe and thereon allege that defendant TRISTAR TELEVISION, INC.is a Delaware corporation with its principal place of business in Culver City, California.  
45.	Defendants TURNER BROADCASTING SYSTEM, INC.; DISNEY ENTERPRISES, INC.; PARAMOUNT PICTURES CORPORATION; NATIONAL BROADCASTING COMPANY, INC.; NBC STUDIOS, INC.; SHOWTIME NETWORKS INC; THE UNITED PARAMOUNT NETWORK; ABC, INC.; VIACOM INTERNATIONAL INC.; CBS WORLDWIDE INC.; CBS BROADCASTING INC.; TIME WARNER ENTERTAINMENT COMPANY, L.P.; HOME BOX OFFICE; WARNER BROS.; WARNER BROS. TELEVISION; TIME WARNER INC.; NEW LINE CINEMA CORPORATION; CASTLE ROCK ENTERTAINMENT; THE WB TELEVISION NETWORK PARTNERS, L.P.; METRO-GOLDWYN-MAYER STUDIOS; ORION PICTURES CORPORATION; TWENTIETH CENTURY FOX FILM CORPORATION; UNIVERSAL CITY STUDIOS PRODUCTIONS, INC.; FOX BROADCASTING COMPANY; COLUMBIA PICTURES INDUSTRIES, INC.; COLUMBIA PICTURES TELEVISION, INC.; COLUMBIA TRISTAR TELEVISION, INC. and TRISTAR TELEVISION, INC. are collectively identified as "the Entertainment Oligopoly defendants" herein.
46.	Plaintiffs are informed, believe and thereon allege that defendant REPLAYTV, INC. is a Delaware corporation with its principal place of business in Mountain View, California. Plaintiffs are informed, believe and thereon allege that defendant REPLAYTV, INC. is a wholly-owned subsidiary of defendant SONICBLUE, INC.
47.	Plaintiffs are informed, believe and thereon allege that defendant SONICBLUE, INC. is a Delaware corporation with its principal place of business in Santa Clara, California. Plaintiffs are informed, believe and thereon allege that defendant SONICBLUE, INC. is the parent company of defendant REPLAYTV, INC.
48.	Plaintiffs are informed, believe and thereon allege that the Entertainment Oligopoly defendants, and each of them, is a plaintiff in one or more of the actions in this judicial district that have been consolidated under the name "Paramount Pictures Corporation et. al., Plaintiffs, v. ReplayTV, Inc., et. al.," Case No. CV 01-9358 FMC (Ex), in which said plaintiffs allege that the ReplayTV has, through manufacture, sale, distribution and support of the ReplayTV 4000 unit, infringed copyrights held by plaintiffs and/or committed contributory copyright infringement and/or vicarious copyright infringement and/or violated Sections 553 and/or 605 of the Communications Act and/or engaged in Unfair Business Practices prohibited by California Business and Professions Code §§ 17200 et seq.
49.	In the ReplayTV case complaints on file made available to the public and Plaintiffs herein, the Entertainment Oligopoly defendants accuse Plaintiffs of Copyright Infringement. 
a.	For example, it is alleged in the ReplayTV case that the Auto-Skip feature of the ReplayTV defendant’s ReplayTV 4000 unit “enables and induces their customers to make unauthorized digital copies of plaintiffs’ copyrighted television programming for the purpose of, at the touch of a button, viewing the programming with all commercial advertising automatically deleted.” Paramount Pictures Corp., et al. v. ReplayTV, Inc. and SonicBlue, Inc., CV 01-09358-FMC (Ex) (amended complaint dated Nov. 21, 2001) (hereinafter the “Amended Paramount Complaint”), at 3, lines 6-13 (emphasis added).
b.	In paragraph 4 of the Amended Paramount Complaint, it is further alleged that “the ‘Send Show’ feature of the ReplayTV defendant’s ReplayTV 4000 unit makes it “a breeze” to make perfect digital copies of plaintiffs’ copyrighted programs, including entire theatrical motion pictures, and distribute them to other people -- even many other people -- through high-speed Internet connections. This unlawful activity likewise deprives plaintiffs of the means of payment for, and diminishes the value of, their copyrighted works.” Id. at lines 14-21 (emphasis added).
c.	Likewise, paragraph 5 of the original complaint states “[ReplayTV] assure[s] their customers that using the ReplayTV 4000 to infringe copyrights will be effortless: ‘[W]ith its broadband connectivity, sending and receiving programs [with the ReplayTV 4000] is a breeze.’” Paramount Pictures Corp., et al. v. ReplayTV, Inc. and SonicBlue, Inc., CV 01-09358-FMC (Ex) (complaint dated Oct. 31, 2001), at 8, lines 23-25 (emphasis added).
50.	  In section 2, page 6, of “Plaintiffs’ Supplemental Memorandum of Law in Support of Their Motion to Compel” in the ReplayTV case, the Entertainment Oligopoly defendants represented that there is a small community of approximately 5,000 ReplayTV 4000 users who tend to communicate with each other. The Entertainment Oligopoly defendants further admitted and acknowledged the apprehension and fear that they have injected into the hearts and minds of ReplayTV 4000 owners, declaring that “…given the widespread publicity about this lawsuit, customers might fear that candid answers [about their ReplayTV 4000 use] might lead to personal liability for them—and thus decline to give such answers.” 
51.	 	Additionally, the relief sought in the ReplayTV case will materially affect the Plaintiffs herein in their use and enjoyment of their ReplayTV 4000s. Plaintiffs are informed and believe, and based upon such information and belief allege, that ReplayTV can technically impair Plaintiffs’ ability to continue to use the "commercial advance" and "send show" features of their ReplayTV 4000 units.  In the ReplayTV complaint the Entertainment Oligopoly defendants seek injunctive relief to:
a.	Prevent ReplayTV from engaging in "any provision, use, or support of the ‘AutoSkip’ or 'Send Show' functions or any similar functions, or from licensing any other person to do the same.”  Paramount Pictures Corp., et al. v. ReplayTV, Inc. and SonicBlue, Inc., CV 01-09358-FMC (Ex) (amended complaint dated Nov. 21, 2001), at 31, lines 1-13.  
b.	Preventing ReplayTV from "encourag[ing] or permit[ting] users to transmit copies of such programming to other persons."  Id. at lines 14-19. 
c.	Plaintiffs further reasonably fear that as part of an injunction granted (or settlement reached) in the ReplayTV case, the Entertainment Oligopoly defendants will require ReplayTV to "push down" a software “downgrade” onto their ReplayTV 4000 units, thus disabling the commercial advance and send show features on their units.
52.	Plaintiffs are informed, believe and thereon allege that each of the Entertainment Oligopoly defendants has agreed with each other such defendant to perform the acts herein alleged to have been carried out by the Entertainment Oligopoly defendants or any of them.  Plaintiffs are informed, believe and thereon allege that each of the Entertainment Oligopoly defendants, as a principal, authorized each other such defendant to act as an agent on behalf of said principal and each such agent so acted pursuant to such authorization.  Plaintiffs are informed, believe and thereon allege that each Entertainment Oligopoly defendant ratified the acts of each of the other Entertainment Oligopoly defendants.  Plaintiffs are informed, believe and thereon allege that each of the Entertainment Oligopoly defendants provided substantial assistance to each of the other Entertainment Oligopoly defendants in performing the acts herein alleged with knowledge thereof.

GENERAL ALLEGATIONS
53.	Article 1, § 8 of the United States Constitution provides that "The Congress shall have Power ... To promote the Progress of Sciences and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  Pursuant thereto, Congress has enacted the Copyright Act of the United States of America, set forth in Title 17 of the United States Code, and the Courts of the United States of America have rendered decisions interpreting said Constitutional provision and said Copyright Act.
54.	In the landmark decision Sony Corporation of America v. Universal City Studios, 464 U.S. 417, 429-430, 104 S.Ct. 774 (1984), the Supreme Court declared that "[t]he monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit.  Rather, the limited grant is a means by which an important public purpose may be achieved.  ...  From its beginning, the law of copyright has developed in response to significant changes in technology."  Quoting from prior authority, the court reiterated the principle that "[t]he limited scope of the copyright holder's statutory monopoly ... must ultimately serve the cause of promoting the broad public availability of literature, music, and the other arts."  (464 U.S. at 431.)  In the Sony case, the Court held that owners of copyrights on television programs could not halt the manufacture and sale of a home videotape recorder ("VTR") on the strength of an argument that such recorders could be used to infringe copyrights.  One reason for the Court's decision was that the VTR was used to shift the time for viewing from the time of original broadcast to a time more convenient to the consumer, that "time-shifting merely enables a viewer to see such work which he has been invited to witness in its entirety free of charge" and that time‑shifting was a "substantial noninfringing use" that could not be prohibited as an incident of the copyright owner's monopoly.  (464 U.S. at 447-56.)
55.	“Space shifting”—the practice of reproducing copyrighted works that have been lawfully acquired in order to experience them in other locations—also properly falls outside of the copyright monopoly so long as such activity falls within the scope of the “fair use” doctrine set out in 17 U.S.C. 107. Plaintiffs’ use of the “send show” features of their ReplayTV 4000s for space-shifting of televised programming fall squarely within the scope of the fair use doctrine. 
56.	The ReplayTV 4000  duplicates the substantial noninfringing uses of the VTRs that were the subject of the Sony decision.  Since the Sony decision, VTR manufacturers have developed and marketed commercial-skipping features. VTRs have, in addition, always facilitated “space-shifting” insofar as VTR users are able to record a tape in one unit and play it back in any other compatible VTR. Unlike a VTR, however, the ReplayTV 4000  records television signals in digitized form on a "hard drive" similar to that found on personal computers. The digital storage provides consumers with greater flexibility and control over the viewing of televised programs.   In addition, a ReplayTV 4000 unit is Internet-accessible so as to provide a consumer automatically with functionally useful information transmitted over the Internet and a means to operate the ReplayTV 4000 unit from a place distant from the unit itself.
57.	Plaintiffs are informed and believe, and based upon such information and belief allege, that the presently-configured ReplayTV 4000 unit allows an owner—as it relates to Entertainment Oligopoly defendants’ television programs—to:  (1) use a "Commercial Advance" feature to automatically avoid  most of the commercials appearing in a television program and to manually avoid commercials with the push of a button similar to an analog VCR; (2) view or transfer recorded programs over the consumer's networked personal computers or other ReplayTV 4000 units via an "Ethernet" connection typically found on computers with broadband connections to the Internet and thus enjoy "space-shifting" without having to physically move recorded media (the "Ethernet features"). The Entertainment Oligopoly defendants have requested that further distribution of the ReplayTV 4000 be enjoined and that all support currently rendered to ReplayTV 4000 owners, including Plaintiffs, also be enjoined.  They have declared that ReplayTV 4000 owners who utilize its commercial advance and “send show” features violate the Copyright Act.  
58.	Plaintiffs are informed, believe and thereon allege that officers for the Entertainment Oligopoly defendants have declared that viewing a recorded television program by means of a ReplayTV 4000 unit without viewing the commercials is  theft.  For example, Plaintiffs are informed, believe and thereon allege that Jamie Kellner, the Chief Executive Officer of defendant Turner Broadcasting System, Inc., recently stated in an interview in Cableworld magazine that avoiding advertisements in programs amounts to “theft” and “stealing.”  Specifically, Kellner is reported to have declared:  "the ad skips.... It's theft…. Any time you skip a commercial or watch the button you're actually stealing the programming."  Cableworld, Monday, April 29, 2002.  See <http://www.inside.com/product/product.asp?entity=CableWorld&pf_ID=7A2ACA71-FAAD-41FC-A100-0B8A11C30373>.  
59.	 Mr. Kellner's assertions that ReplayTV users are engaging in "theft" and "stealing" have been widely circulated in the mainstream and internet press:  
a.	http://forbesbest.com/home_europe/2002/05/03/0503sonicblue.html
b.	http://news.bbc.co.uk/hi/english/sci/tech/newsid_1986000/1986616.stm 
60.	In an article published by Time magazine (part of the AOL Time Warner conglomerate that includes the Time Warner defendants), owners of the ReplayTV 4000 unit have been identified as "Pirates of Prime Time." <http://www.time.com/time/business/article/0,8599,203498,00.html>.
61.	In the ReplayTV case, the Entertainment Oligopoly defendants obtained an order requiring the ReplayTV defendant to collect and provide to the Entertainment Oligopoly defendants information about consumers who access ReplayTV websites, that may include, Plaintiffs are informed, believe and thereon allege, personally identifying information, as well as so-called “anonymous information” (which may be later linked to personally identifying information) collected by  ReplayTV website(s).
62.	Plaintiffs are further informed, believe, and thereon allege that the Entertainment Oligopoly defendants have in the ReplayTV case alleged that watching a time-shifted television program more than once, or storing such a show for any extended period of time, constitutes prohibited “librarying” that violates the Copyright Act.  
63.	Plaintiffs and other owners of the ReplayTV 4000 have been placed in realistic danger of sustaining a direct injury as a result of  being named as defendants in lawsuits filed by the Entertainment Oligopoly defendants, including lawsuits alleging copyright infringement and/or violations of the Communications Act. Plaintiffs do not agree with the Entertainment Oligopoly defendants that a condition of watching time-shifted television shows is a requirement that Plaintiffs must also watch all included commercials and that violation of this condition results in copyright infringement liability. Plaintiffs similarly disagree with the Entertainment Oligopoly defendants who claim that consumers have no right to time-shift, space-shift, or communicate using the ReplayTV 4000 in their homes. Plaintiffs further disagree with the Entertainment Oligopoly defendants that watching a time-shifted program more than once, or storing it for more than a brief time, constitutes infringing “librarying.” 
64.	Plaintiffs are seeking a remedy from such fear and apprehension and relief from the uncertainty, insecurity, and controversy that gives rise to this proceeding. Plaintiffs are in apprehension and fear of being sued by the Entertainment Oligopoly defendants since such litigation will likely cause financial ruin in attorneys’ fees alone.  And given the onerous nature of statutory damages, Plaintiffs cannot afford to guess incorrectly about where the fair use-infringement line is drawn, should they be named as defendants. 
65.	 Until the parties’ respective legal rights, duties, and responsibilities are determined by this Court, Plaintiffs and other ReplayTV 4000 customers will be chilled in the exercise and enjoyment of their fair use rights—which rights are intimately intertwined with First Amendment rights—as they attempt to avoid the unknown line of when fair use becomes infringement. 
66.	 Plaintiffs further face a realistic danger of sustaining a direct injury, including full or partial monetary loss, should injunctive relief be granted to the Entertainment Oligopoly defendants in the ReplayTV case. Plaintiffs and other consumers paid in excess of $500 dollars for each ReplayTV 4000 device with the reasonable expectation that certain material functions at issue would be operational. To the extent injunctive relief in the ReplayTV case resulted in ReplayTV suspending support for ReplayTV 4000 features, or in Court-mandated modification of Plaintiffs’ ReplayTV 4000 units by ReplayTV, such relief would materially impair Plaintiffs’ enjoyment of their ReplayTV 4000 units.

FIRST CLAIM FOR RELIEF
(Request for Declaratory Judgment)

67.	Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint.
68.	Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57 for the purpose of determining and adjudicating questions of actual controversy between the parties.
69.	Plaintiffs contend as it relates to the Entertainment Oligopoly defendants and their television programs that, consistent with the Copyright Act of the United States of America, including those laws prohibiting direct, contributory or vicarious infringement, the Communications Act, laws protecting fair use and the First Amendment to the United States Constitution, and judicial decisions construing such laws, doctrines, and provisions:
a.	Each Plaintiff's ownership of a ReplayTV 4000 unit is lawful;
b.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully record television programs broadcast free or paid for by a member of the Plaintiff’s household for later viewing by the Plaintiff and members of Plaintiff’s household; 
c.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully utilize the commercial advance features provided with the unit;
d.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully use the Ethernet features provided with the device for purposes of viewing by the Plaintiff or members of the Plaintiff’s household of any television program broadcast free or paid for by a member of the Plaintiff’s household no matter where the viewer is located; and
e.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully use the Ethernet features provided with the device 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.
70.	Plaintiffs are informed, believe and thereon allege that the Entertainment Oligopoly defendants contend the contrary of each of above-stated propositions (a) through (e). 
71.	Wherefore, Plaintiffs request that the court determine and adjudge that each and every of the above-stated propositions states the law applicable to the facts involved in this action.

WHEREFORE, Plaintiffs pray for judgment as follows:
1.	A declaration that as it relates to the Entertainment Oligopoly defendants and their television programs that:
a.	Each Plaintiff's ownership of a ReplayTV 4000 unit is lawful;
b.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully record television programs broadcast free or paid for by a member of the Plaintiff’s household for later viewing by the Plaintiff and members of Plaintiff’s household; 
c.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully utilize the commercial advance features provided with the unit;
d.	Each Plaintiff, as an owner of a ReplayTV 4000 unit, can lawfully use the Ethernet features provided with the unit for purposes of viewing by the Plaintiff or members of the Plaintiff’s household of any television program broadcast free or paid for by a member of the Plaintiff’s household;
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;
2.	Attorney fees pursuant to the Copyright Act, Private Attorney General basis, or otherwise as allowed by law;
3.	Plaintiffs' costs and disbursements within; and
4.	Such other and further relief as the court shall find just and proper.
Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to, those issues found in any amended complaint or consolidated action.

Dated:   June 6, 2002						
						ROTHKEN LAW FIRM

																		By:_______________________
						Ira P. Rothken, Esq. (State Bar No. 160029)
ROTHKEN LAW FIRM
1050 Northgate Drive, Suite 520
San Rafael, CA  94903
Telephone: 	(415) 924-4250
Facsimile:  (415) 924-2905

						Cindy A. Cohn, Esq. (State Bar No. 145997)
Fred von Lohmann, Esq. (State Bar No.192657)
Robin D. Gross, Esq. (State Bar No. 200701)
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone:  (415) 436-9333 x108
Facsimile: (415) 436-9993

Attorneys for Plaintiffs
Craig Newmark, Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright