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TV 'Zapper War' Heads to Court

More than 20 years ago, the American television industry filed suit to halt sales of a new device called the video cassette recorder - the VCR. The industry argued that giving customers the power to record shows and fast-forward through commercials violated the producers' copyright. But the U.S. Supreme Court ruled against the industry. It said that consumers have the right to what the high court called "fair use" of TV programs. Soon millions of consumers bought VCRs. VOA's Ted Landphair says television recording machines have entered the digital age, and lawsuits and countersuits are flying once again.

TV industry publications call it the "zapper war," because customers' right to erase - or "zap" - commercials . . .

"Stronger than dirt! . . ."

. . . is at the heart of the dispute.

Jason Snell, the editor of Macworld magazine, who writes commentaries about television in an Internet column, says a new generation of digital video recorders, or DVRs, can already be found in about three percent of television homes. Sometimes called a "personal video recorder", the DVR is a sophisticated computer hard drive. It offers a complete menu of every show that's available on a viewer's television, cable, and satellite systems.

Customers simply indicate which programs they'd like recorded, the machine does the job, and the viewers settle in to watch at their leisure.

"There are a couple of different ways that these devices can program out commercials. Replay TV has a 30 second skip button on the remote control, and since most commercials are thirty seconds long, it essentially allows you to get to the commercial break and click four times and be through two minutes and say, 'Ah-ha! now the show is back.' TiVo has a fast-forward device but not a 30 second skip. You can fast-forward at three different speeds, up to about 60 seconds in one second," says Mr. Snell.

And Replay TV's top-of-the line model can be set to zap the commercials automatically, while it's recording programs.

The Sonicblue Company makes the Replay TV digital recorders. One of its Internet ads touts the "quick-skip" feature that, in the company's words, "is perfect for jumping past commercials and undesired scenes":

"If you love recording TV shows, you can record all your favorite shows and make commercial-free copies of them for viewing or archiving. You'll save about twenty minutes out of every sixty minutes, the average ratio of commercial time to regular TV programming. It's easy!"

Television's estimated annual advertising revenue tops $50 billion, and the industry is alarmed and angry at the ease with which consumers can digitally copy programs and zap commercials.

Jamie Kellner, chief executive of Turner Television in Atlanta, told the New York Times newspaper that "the free television that we've all enjoyed for so many years is based on us watching these commercials." Mr. Kellner described the zapping of commercials as "stealing."

Last fall, when Sonicblue introduced its Replay TV digital recorders, 28 big entertainment companies filed suit. Lawyers representing the industry did not return VOA's phone calls, but here is a portion of the legal filing that relates to the zapping of commercials:

"Defendants' unlawful scheme attacks the fundamental economic underpinnings of free television and, hence, the means by which plaintiffs' copyrighted works are paid for."

Another section of the TV industry lawsuit assails the ease with which Replay TV owners can digitally record programs and send them around the Internet without paying any sort of fee. The industry contends this is nothing short of piracy.

In response to the entertainment industry lawsuit, the Electronic Frontier Foundation, a 6,000 member technology advocacy group, based in San Francisco, has filed a countersuit on behalf of five Replay TV customers. It asks a California court to declare the use of digital video recorders, including the zapping of advertisements, perfectly lawful.

One of the plaintiffs is 36-year-old Shawn Hughes. He's a contractor who builds shopping centers in the Atlanta, Georgia, area. Mr. Hughes says he uses his two Replay TV digital recorders at home primarily to shield his four-year-old son from obnoxious commercials. "I'm able to use the commercial-advance feature to skip over the commercials so he doesn't get the idea that everything he sees in the commercial, he has a right to have," he says. "As for the junk-food ads, we try to gear our kid to healthier types of food. I don't like the commercials that want every kid to 'super-size' their french fries, when that's one of the most unhealthy foods available."

Because Sonicblue is a small company, pitted against entertainment giants in the current litigation, some industry analysts speculate that it will settle the case, saving its digital video product but agreeing to disable the technology that zaps commercials.

Electronic Frontier Foundation attorney Robin Gross says Replay TV customers would not accept such an option. "There are folks who basically paid about $700 for their devices because they have particular uses that are promised to them," she says, "including the ability to fast-forward through commercials. And if suddenly Replay TV decides to disable this function, Replay TV will likely find itself at the end of a lawsuit that a very angry group of customers will have brought against it for, essentially, selling them products and then not delivering with what they promised the products would be capable of."

John Bernoff is the television analyst for Forrester Research, a Massachusetts firm that evaluates new technology. No matter who wins the zapper war, Mr. Bernoff believes, the television business has been changed forever, because viewers with digital recorders have seized a degree of control that the TV industry will never get back. "The long-term change here is that people will not be watching things they're not interested in just because that happens to be on right now," he says. "As a result, people who create commercials will have to be a whole lot more clever in getting their messages in front of people with things like product placement in television programs, with their logos appearing on the screen in ways that are difficult to skip. This revolution is beginning now. I think within five years you're going to see a completely different way of doing marketing and advertising on television and a shift away from the power of the networks as a result of these trends."

"You can trust your car to the man who wears the star"
"For the finest products that can take care of your car . . . ."

Some analysts say consumers will eventually tolerate only the freshest and most imaginative short commercials. They say television networks and program producers, desperate for revenue, may again be forced to seek single sponsors for entire shows, bringing television full circle to its infancy in the 1940s. That's when shows like Milton Berle's Texaco Star Theater ruled the airwaves.

Without commercials, the industry's only other options would be to, like many moviemakers, allow sponsors to slip their products into story lines, for a fee. Or they could follow the cable industry's example and charge customers for the serenity of commercial-free television.