Judge Rejects Fox's Attempt To Shut Down Dish's Autohop Feature, But Indicates It May Still Infringe

from the innovation-killers dept

Thu, Nov 8th 2012 5:23am — Mike Masnick

Earlier this year, we wrote about the TV networks suing Dish Networks for its new Autohop feature. Dish created a neat bit of innovation, which automatically recorded all prime time shows for people to watch later, and as long as you watched the day after the shows aired, it would auto-skip the commercials. This is the kind of thing that a user could set up themselves, though it's a bit cumbersome, and too many DVR providers have shied away from automated "commercial skip" features after the TV industry sued ReplayTV over such a feature (despite many VCRs having it already). Ridiculously, the networks, led by Fox, claimed that skipping commercials is a form of copyright infringement. The theory there is... convoluted, at best.

The latest news is that Fox has lost in its attempt to get an injunction, meaning that the service will live on as the trial continues. The filing is sealed for now, as apparently there are some trade secret details that need to be redacted. However, both sides are trying to claim victory -- with Fox saying that the order does indicate that the feature is copyright infringement:

"As reported, the court denied Fox's request for a preliminary injunction. But we are gratified the court found the copies DISH makes for its AutoHop service constitute copyright infringement and breach the parties' contract. We are disappointed the court erred in finding that Fox's damages were not suitable for a preliminary injunction. We intend to appeal that portion of the court's decision, as well as the court's separate findings concerning the PrimeTime Anytime service. DISH is marketing and benefitting from an unauthorized VOD service that illegally copies Fox's valuable programming."

That sounds bizarre -- as it suggests that the court still thinks that a service to skip commercials could be infringing -- but we understand that's not the case at all. The ruling is very, very specific and only narrowly found infringement in one small, minor aspect of what was happening. And, the fact that there's no injunction is actually pretty damning for Fox. It shows that the court doesn't believe the "harm," if there is any, is so bad that it can't be dealt with eventually through monetary awards, rather than shutting down the service. It still seems ridiculous that building a useful service that provides features that people want -- which involves things that individuals can do on their own -- is somehow infringing. Dish's own statement suggests that this ruling is mostly a win -- and the "loss" is minor, since it appears the key aspects of its service were not found to be infringing.

"Today's ruling is a victory for common sense and customer choice. DISH is gratified that the Court has sided with consumer choice and control by rejecting Fox's efforts to deny our customers access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home DVR. The ruling underscores the U.S. Supreme Court's ‘Betamax’ decision, with the court confirming a consumer's right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose."

We'll have more once the redacted ruling is unsealed, but from what we've heard, Fox lost bigtime here. Still, just the fact that this is even being fought out in court should be an indication of the ridiculousness of copyright law today, in which companies aren't allowed to innovate without Hollywood (or the courts) having to first give approval.

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Filed Under: autohop, commercial skipping, copyright
Companies: dish networks, fox

47 Comments

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gorehound (profile), 8 Nov 2012 @ 5:28am

Screw The MAFIAA
Simply put my philosophy is to Screw The MAFIAA ! I Boycott your whole MAFIAA Industries.I no longer care at all what is on Fox, NBC,ABC, ETC.None of your Programming matters to me.Nor do I care at all about any Film you are making.I just Pass by and not bother to read about any new Projects you have.
I Make Sure You Are Censored From My Wallet ! If you are MAFIAA then you can just go to Hell.
Buy & Support Local and Indie Art Only !
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Anonymous Coward, 8 Nov 2012 @ 5:29am

Copyright harm
If the content was skipped, and only the adverts recorded would Fox have brought a case?
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Titania Bonham-Smythe (profile), 8 Nov 2012 @ 5:30am

Why doesn't Dish simply block all Fox channels on their device? Would anyone miss them?
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Zakida Paul (profile), 8 Nov 2012 @ 5:51am

This very simple. Fox couldn't care less about people not watching commercials (same for the other networks). This is all about control. They want you to watch your favourite TV shows on THEIR schedule and in a way that THEY approve of.

It is this that is leading to their downfall an it is this that is pushing people to piracy. Everything else is all bollocks smoke and mirrors.
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Nate, 8 Nov 2012 @ 6:03am

What?
Explain to me how the act of not watching something can come up as a court case related to copyright infringement?

(I know, there is all sorts of legal mumbo jumbo, it just sounds like insanity when you look at it)
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Zakida Paul (profile), 8 Nov 2012 @ 6:06am

Re: What?
Legacy industry logic. Intelligent people cannot understand it because it is on a completely different plane of existence.
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orbitalinsertion (profile), 8 Nov 2012 @ 6:07am

If someone was smart, they'd offer commercial advertising and show promo menus, so people could find that information on demand, rather than being bombarded with it until they never want to hear about some product, company, or show again.
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Nathan F (profile), 8 Nov 2012 @ 6:07am

How can Fox claim that DISH is infringing copyright by recording the content, or are they being nitpickey and saying that copies of the content that are recorded specifically for later viewing with Autohop are infringing?
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orbitalinsertion (profile), 8 Nov 2012 @ 6:09am

Re: What?
The key here is that even if a consumer decides to skip the commercials, the service provider is essentially making available a copy of another party's work in a modified form.

Yes, it's still stupid.
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Anonymous Coward, 8 Nov 2012 @ 6:15am

Re:
Because they rely on commercials they very much care if people watch them, as the number of people watching the commercial determines their income. Its their content that is less important as it it a vehicle top attract viewers to the commercials.
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Devils_Advocate (profile), 8 Nov 2012 @ 6:23am

Another interesting point...
The advertisers money only covers the *air time* on the *original broadcast*, anyway.

It's not like there's any further obligation on anyone's part to continue to attach the ads to the programming afterward.

That point, alone, should carry enough weight to finish the argument.
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Anonymous Coward, 8 Nov 2012 @ 6:24am

Re: Copyright harm
That's exactly how their Comcast onDemand offerings work - you can fast forward all you like through the show itself, but that function is disabled for the commercials.

Yes, the commercials in Fox reruns onDemand are unskippable. Their precious, precious content? Feel free to whiz on by all of it.
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Zakida Paul (profile), 8 Nov 2012 @ 6:25am

Re: Re:
Except that most people will channel hop or go make a cup of tea or a snack during commercials so they never see them anyway. Do you really think the networks are unaware of this?
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Anonymous Coward, 8 Nov 2012 @ 6:26am

Re:
Its a wonder that Fox aren't claiming that the Video recoreder and DVD recorder arn't infringing copyright because they can be used to record and watch back later.
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Anonymous Coward, 8 Nov 2012 @ 6:28am

Re: Re:
If the commercials are lets face it crap then who would want to see it nevermind actually buy the product from the crap commercial.
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Zakida Paul (profile), 8 Nov 2012 @ 6:28am

Re: Re:
And you can stop recording for commercials and restart when the commercials are over. Oooh this technology must be crushed.
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artp (profile), 8 Nov 2012 @ 6:32am

That's a novel claim
Is Fox now claiming that they own the copyright to the advertisements, too?

There is BIG money in the ad business. I wonder what Procter & Gamble would say about that? Or one of the big ad agencies?
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Sean, 8 Nov 2012 @ 6:34am

Commercials
If you are watching a live sporting event and get thirsty or hungry when are you going to get up to satisfy that want? During the commercial.

For those that have home theater PCs and record live television to watch later is Fox (and MAFIAA) lawyers going to come after us? Doing this you can go in and edit the commercials out completely and then not even worry about the fast forward button.
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Anonymous Coward, 8 Nov 2012 @ 6:44am

Re: Re: Re:
No, that is why the sound goes to a compressed max. It is a lets make it audible in the Kitchen tactic
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surfer (profile), 8 Nov 2012 @ 6:54am

Re: Commercials
this is the simple convenience that file-sharers contribute to the overall 'experience'. also, it states in copyright law that if you modify a significant piece of copyrighted material, that you are in fact authorized to apply new copyright to the result. just like the music studios 'remaster' albums, they get a new copyright.

so if file sharing 'pirates' redact 20min of commercials from a 60min show, that is a 30% modification, and should have a new copyright applied. the **AAs do this all the time, so why is this infringing for others to do the same thing?
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weneedhelp (profile), 8 Nov 2012 @ 7:18am

Re: Re: Re: Re:
[Presses mute, goes to kitchen]

In fact, I press mute while sitting there too.
" make it audible in the Kitchen "
How's that working out for them?
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Anonymous Coward, 8 Nov 2012 @ 7:34am

Constitutionally this is a non issue, unless they try the 1st
Fox *MIGHT* have a small case if they went after Dish for violating the 1st Amendment, but then they would be laughed at because the 1st Amendment ONLY applies to government restricting speech.

I would say DISH has a strong case in claiming that they are protecting CopyRights of the owners of the commercials not being recorded... Didn't the Networks and Hollywood both sue at one point claiming that DVR technology violated Copyright Law???? Seems this case is trying to have their cake and eat it too...

OH WAIT, didn't they also loose the case against DVRs for allowing you to skip 30 seconds forward???

Nothing constitutional about this case, just contractual, so this judge made the right choice.
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BlackHalo, 8 Nov 2012 @ 7:50am

Re: What?
I think their infringement case lies in that the "recording" is not a true "recording" since the device skips/leaves out the commercials. The broadcast has been modified.

That's the only angle I can come up with.
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Baldaur Regis (profile), 8 Nov 2012 @ 7:54am

...seems ridiculous that building a useful service that provides features that people want...is somehow infringing.
But Fox et al has never cared about people. Why should they? Their job is to shake a few more pennies out of consumers' pockets all the way down the distribution chain before their product slips into obscurity.

If people can watch what they want when they want, they cease being 'consumers' and become...people. Media corps have mad consumer skills; people skills, not so much.
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Falindraun (profile), 8 Nov 2012 @ 8:16am

Re: Re:
that has already been settled. http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.
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ChurchHatesTucker (profile), 8 Nov 2012 @ 8:37am

Re: Re: What?
Assuming that the copyright lies with the production company and not the network, wouldn't inserting commercials create a derivative work, and thus a copyright violation?
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Bored, 8 Nov 2012 @ 8:45am

Fox has "valuable programming"? Since when?
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John Fenderson (profile), 8 Nov 2012 @ 9:00am

Re: Re: Re:
The difference is that there are no metrics advertisers have that tell them when people aren't actually watching the commercials. Only when the commercials are shown.

From the broadcasters point of view, the only thing that counts (i.e., affects their ad rates) is what is shown in the metrics. Fox doesn't care if you actually watch the commercials, but they care a lot about whether the commercials play on your TV.
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John Fenderson (profile), 8 Nov 2012 @ 9:01am

Re: Re:
When VCRs came out, the media companies did in fact make this exact argument in court. They don't make it now in that form because it's settled case law.
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btr1701 (profile), 8 Nov 2012 @ 9:53am

Re: Re: Re: Re: Re:
> [Presses mute, goes to kitchen]

If they could get away with it, they'd disable your mute button the same way they program their DVDs to disable your FFW and MENU buttons during their pre-movie ad blitz.
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btr1701 (profile), 8 Nov 2012 @ 10:03am

Re: Re: Re: Re:
> From the broadcasters point of view,
> the only thing that counts (i.e.,
> affects their ad rates) is what is
> shown in the metrics. Fox doesn't
> care if you actually watch the
> commercials, but they care a lot about
> whether the commercials play on your TV.

So why are they concerned about this AutoHop feature? As it stands right now, neither they nor the advertisers have any way of knowing whether I watch the commercials or skip them. All they know is that commercials were served with the show and ad rates are set accordingly. How would AutoHop change that? Whether it's me doing the skipping by pressing a button on my remote or the DVR doing the skipping by executing a line of code, the end result is the same from the perspective of the networks and their ad clients.
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btr1701 (profile), 8 Nov 2012 @ 10:07am

Re: What?
> Explain to me how the act of not watching
> something can come up as a court case
> related to copyright infringement?

They've basically become conditioned to scream "Copyright violation!" anytime anyone does anything with content that they don't like. Whether it's actually a violation of the law is becoming less and less relevant every day. That's how we ended up with 'contributory infringement', after all. Someone did something that Big Copy didn't like, and even though it wasn't even remotely illegal under the actual statute on the books, they managed to get a judge to literally make up a whole new violation and apply it to the defendant and millions of other people by proxy.
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John Fenderson (profile), 8 Nov 2012 @ 10:16am

Re: Re: Re: Re: Re:
It's only a guess, but my guess is that advertisers will use the existence of the Autohop feature as leverage to negotiate lower ad rates based on the (probably correct) assumption that all subscribers to the feature will be skipping the ads.

It would give ad buyers some solid numbers to use, unlike DVRs.
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ltlw0lf (profile), 8 Nov 2012 @ 10:16am

Re: Re: Copyright harm
Yes, the commercials in Fox reruns onDemand are unskippable. Their precious, precious content? Feel free to whiz on by all of it.

It makes sense to them...most people want their content, but don't care for commercials. Instead of offering the carrot by allowing customers to decide what they wish to do, they employ the stick by making them view the commercials. The truth is, the content itself is the only carrot Fox (and other media ventures) have, it is the content that drives the consumer to their only commercial product, the commercials, which of course, they are selling to their customers. So in otherwords, it isn't their content that is precious, but the commercials.
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DogBreath, 8 Nov 2012 @ 11:03am

Re: Re: Re: Re: Re:
Mute Button, Best-Invention-Ever.

I'm even thinking of getting one of these.
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DannyB (profile), 8 Nov 2012 @ 11:40am

Re: Re: What?
That's easy to fix. Just record it with the commercials.

Skip commercials at playback time. Then the commercial skipping is merely a feature of the playback device, just as is the fast forward button. Or pause button so you can go to the kitchen.
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Rikuo (profile), 8 Nov 2012 @ 12:03pm

Hmm...zzzz...

Sorry, Fox, couldn't care less about what you're complaining about now. I was too busy downloading video files for free onto one of my many hard drives in my desktop, then playing them on a laptop connected by HDMI cable to my 40" HDTV.
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Anonymous Coward, 8 Nov 2012 @ 12:07pm

Fox's angle
You, as a consumer, recording the show for viewing later is covered as Fair Use. A commercial enterprise (Dish) creating a copy of that "work", modifying it and remarketing it back to you for a profit harms the content publisher because they priced the broadcast rights assuming only the first (consumer initiated) scenario. Dish should have renegotiated their contract first.
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JEDIDIAH, 8 Nov 2012 @ 1:32pm

Re: Re:
> Because they rely on commercials

Not quite. Commercial channels also extract every increasing fees from cable providers. That should be a familiar fact to anyone that follows this stuff or is just a cable customer.

You probably even remember the last time content providers played chicken with your cable company in a bid to increase their fees.
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btr1701 (profile), 8 Nov 2012 @ 4:19pm

Re: Re: Re: Re: Re: Re:
> It's only a guess, but my guess is
> that advertisers will use the existence
> of the Autohop feature as leverage
> to negotiate lower ad rates based
> on the (probably correct) assumption
> that all subscribers to the feature
> will be skipping the ads.

> It would give ad buyers some solid
> numbers to use, unlike DVRs.

That doesn't really make any sense either. They could do the same thing right now-- use the existence of the FFW feature on VCRs and DVRs to demand lower ad rates. Either way, the fact that the feature exists doesn't mean it's being used all the time and they have no way of knowing which people are using it and which are not.
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Anonymous Coward, 8 Nov 2012 @ 7:22pm

Re: Fox's angle
If the law had any sense this would be thrown out as being, for all practical purposes, equivalent to those VCRs which had a commercial-skip feature (and I had one of those 15+ years ago).
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Anonymous Coward, 8 Nov 2012 @ 10:29pm

So, let me get this straight; Fox believes that if I walk out of the room every time a commercial comes over their fucked up channel, I am infringing their precious copyright? That's kinda what I'm taking away from their ranting.

I guess what ought to happen then is a clock work orange kinda deal, where if you wanna watch Fox TV you need to be strapped into a chair with a straight jacket, have your eyelids held open with toothpicks, and headphones on your ears loud enough to wake the dead but not so loud as to break your eardrums; as that too would be considered infringing.

Okay, I'm down.
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Hephaestus (profile), 8 Nov 2012 @ 10:40pm

Re: Re: Re: Copyright harm
Gee wiz I wish that tech dirt had ads I could ignore ... oh wait it does .. I just do not click on them.

The whole issue is that their business model has been turned upside down and people are just choosing to not click on their ads.
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ltlw0lf (profile), 9 Nov 2012 @ 6:39am

Re: Re: Re: Re: Copyright harm
The whole issue is that their business model has been turned upside down and people are just choosing to not click on their ads.

I think we are in violent agreement. I doubt Mike cares that you don't click the ad, and he certainly doesn't hide the article until you click the ad (unlike Murdoch and the other media barons.) He offers the carrot (content) and in exchange, you occasionally get crappy flash-pop-overs from Siemens when you move your mouse over their ad while switching windows.
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Anonymous Coward, 9 Nov 2012 @ 4:49pm

Re: Re: Re: What?
Or just go to the kitchen and let the commercial talk to the couch, oops, infringement (spoken like the military man at the first of Pineapple Express when he says illegal - right before having the private taken out and shot.)
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Peter, 9 Nov 2012 @ 4:56pm

Re: What?
Well, it would depend on how they are determining something is an ad.

Let's say that Dish is recording content from Fox at Dish's headquarters and determining what is unique about the shows before it goes into/returns from an ad block. They are then sending this information off to all of the Dish receivers located around the world so that those people don't have to do this.

Yes, this could be considered copyright infringement. Broadcast content is provided for viewing purposes--not for calculating things like where program content begins and ends.

For example, let's say I buy NFL Sunday Ticket for my home. I then take all the football feeds and send it to tool that scans the screen looking for the score. I now have all the scores for the Sunday games in realtime which I can post on my website, complete with advertising and social networking and all that stuff and make money from.

However, NFL broadcasts are copyrighted for the private use of the audience, blah blah blah. So, yeah, that would be copyright infringement.

If Dish is doing something similar, they could be in trouble because they only have the "right" to transmit it.
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Anonymous Coward, 9 Nov 2012 @ 7:33pm

Re: Another interesting point...
but it won't
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