Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728about Send Show. Id. The Policy also limits the circumstances under whichSONICblue may disclose any viewer’ s information.Thus, in the first instance, the disclosure Plaintiffs demand is plainly outsideof the scope customers could expect under Defendants’ Privacy Policy, and, as amatter of privacy rights as well as the inherent limitations of Rule 34, should not beordered at all.Second, if there were any basis to order collection or disclosure, this shouldonly occur after adequate notice to consumers and a right either to opt in (aspotentially required by provisions of law and policy requiring “ express consent” ) orat a minimum to opt out of this new collection of information. 44/Third, if there were any information to be collected, it must be strictlyaggregate information, completely disassociated from any information identifyingusers as guaranteed by the policy and statutes. Plaintiffs’ requested order does notensure such anonymity. Rather, it would require that information be collected withthird party users identified “ by unique identification numbers.” This could preventthe disassociation of use information from user identity that is crucial to userprivacy. Such potential to correlate individual use with an identity of the user isexactly what raised the vociferous objections to TiVo’ s policy, leading to theabandonment of Replay TV’ s pre-May 2001 policy. Moreover, even underReplayTV’ s prior policy, it provided for only “ one way encoding” to preventlinking of identifying information to anonymous information. Pignon Decl. 14.Only if the consumer expressly chose to disclose that association would Replayhave learned of it. Accordingly, only aggregate information not linkable to anyDuring meet and confer negotiations, Plaintiffs referred frequently to the datacollection practices of ReplayTV’ s competitor, TiVo. TiVo apparently does stillcollect consumer behavior data that ReplayTV ceased to collect a year ago. TiVoallows its customers to “ opt out” of any collection of the data with a toll-free call.Since ReplayTV does not now collect any such behavioral data, it has no need forsuch an opt-out right. But if the Court orders ReplayTV to collect such data fromits customers and disclose it to Plaintiffs, its customers should be afforded that optoutright.44/56