Another Day, Another Loss For Broadcasters In Quixotic Campaign To Kill Innovation

from the moving-forward dept

Mon, Sep 23rd 2013 7:47pm — Mike Masnick

Just last week, we noted that a court in NY had rejected an attempt by ABC and CBS to shut down DISH's AutoHopper offering that helps users automatically skip commercials (along with their PrimeTime AnyTime feature that automatically records prime time network TV). That came after a ruling in California in a nearly identical case, this time by Fox and NBC. That case had moved forward and it appears that, yet again, a court has said no to the attempt to get an injunction against DISH. The full decision isn't out yet, but the parties have seen the ruling and it's clear that DISH won, and Fox didn't:

"We have just received the ruling, and while the judge found that Fox could prevail at trial on the merits of the case, she did not grant our preliminary injunction," says a Fox in a statement. "We disagree that the harms caused by Dish’s infringing services are completely compensable by damages, and as a result we are looking at all options. We will file a response in due course."

While the details matter, it seems pretty clear that (as the court has said before), even if DISH is found to have infringed (though it expresses some skepticism on the likelihood of such an argument working), the court doesn't see any irreparable damages from letting the technology move forward. This is a good thing. All too often, it seems that the copyright maximalist organizations view any possible infringement as "irreparable" harm, even though it's nothing of the sort.

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Filed Under: autohopper, copyright, hopper, primetime anytime
Companies: abc, cbs, dish, fox, nbc

49 Comments

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That Anonymous Coward (profile), 23 Sep 2013 @ 8:00pm

Is the Judge in the case perhaps familiar with the whole 'Boston Strangler' media frenzy and the golden age the MPAA was dragged kicking and screaming into?
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Anonymous Coward, 23 Sep 2013 @ 8:13pm

Hey, Mike. Do you even know what "irreparable" means in this context? If so, you don't demonstrate it in your post. Care to elaborate on how you determined the harm here wasn't irreparable?
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Anonymous Coward, 23 Sep 2013 @ 8:31pm

Re:
How does one break what is broken to begin with?
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Anonymous Coward, 23 Sep 2013 @ 8:35pm

Re:
Would you care to demonstrate how the harm here was irreparable?
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Anonymous Coward, 23 Sep 2013 @ 8:44pm

Would you care to demonstrate how the harm here was irreparable?

I'm not the one writing and publishing articles claiming here that as far as irreparable harm goes, "it's nothing of the sort." Can Mike actually back up his argument, or is this just more faith-based FUD? Hmmm... I wonder.
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out_of_the_blue, 23 Sep 2013 @ 8:47pm

Innovation? I've been skipping commercials since at least 1972!
Gosh, what a techno-pioneer I am.

This has NOTHING to do with copyright, maximalist or any other kind. -- It's about REVENUE, so fairly vital to some. I'll dumb it down for "economists": if people don't watch advertisements, advertisers will quit funding the shows. With me so far?

Now, as I've said several times, the possibility of using "technology" to skip advertisements is one of the most pressing problems on "teh internets". -- Just imagine if everyone used "Noscript" and hosts file to prevent Google from spying on them and targeting ads! Wouldn't that be a good stymy for that amoral spying mega-corporation? Heh, heh. -- BUT there's no one else here who can even see the little picture, and why should I elaborate on anything of interest for piratey ankle-biters who'll just steal my ideas without attribution?
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Anonymous Coward, 23 Sep 2013 @ 8:50pm

Re:
You're the one writing and publishing comments.
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Anonymous Coward, 23 Sep 2013 @ 8:57pm

Re: Re:
No no no - you've got it all wrong.
Clearly they do not need to prove it "irreparable", they only need to claim it to be ... and you need to prove it is not, you can not just say so. This is the way it is done in adult land and if you don't like it they will just take their ball and go home.
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Anonymous Coward, 23 Sep 2013 @ 9:00pm

Re:
What - exactly - is faith-based FUD ?

Sounds like verbal diarrhea.
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Anonymous Coward, 23 Sep 2013 @ 9:01pm

You're the one writing and publishing comments.

Yes, but my claim is only that I don't think Mike (a) knows what irreparable harm means, and (b) has any actual argument as to why the alleged harm here is not irreparable. Will he address either point? I doubt it. Sincerely. Mike doesn't do details. Or debates. Or substance.
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out_of_the_blue, 23 Sep 2013 @ 9:06pm

Re: Re:
@ AC:
Would you care to demonstrate how the harm here was irreparable?

You're the one writing and publishing comments.

Gosh, you're stupid and feeble. It's impossible for me to believe that you think your two one-liners help in any way. In fact, they just show the vacuity of Techdirt fanboys.

By the way, I wrote too quickly about "only one here who can see": the OTHER AC piqued my interest and I'd like to see Mike try to field that "irreparable" bit too. Of course we all know he won't.
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Anonymous Coward, 23 Sep 2013 @ 9:16pm

What - exactly - is faith-based FUD ?

Sounds like verbal diarrhea.

In a sense, it kind of is. It's pretending to reach a legal conclusion based on legal reasoning, while in fact it's based only on one's extreme bias. Mike's specialty.
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Anonymous Coward, 23 Sep 2013 @ 9:18pm

By the way, I wrote too quickly about "only one here who can see": the OTHER AC piqued my interest and I'd like to see Mike try to field that "irreparable" bit too. Of course we all know he won't.

Of course he won't. It's Mike. He doesn't back up his legal conclusions with actual legal arguments. We all know that.
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out_of_the_blue, 23 Sep 2013 @ 9:29pm

Re: Re:
@ AC
What - exactly - is faith-based FUD ?

It's probably unique to Techdirt. I'll field it, though doubt will please you:

The "faith" part is blind belief by fanboys that Mike is any sort of expert (his reputation is based solely on the one long-ago quip of "Streisand Effect"); I suppose you know "FUD" is an ancient acronym (originated in 1970's at latest from IBM's strong-arm "marketing" practices warning customers of alleged bad consequences for using another vendor) for Fear - Uncertainty - Dread. -- Here, FUD is evident in Mike's title that packages up vague and over-blown assertions: "Quixotic Campaign To Kill Innovation". So Mike ginning up fanboys with his imaginary vague future worries (and / or hopes for the destruction of copyright) is what the AC means by "faith-based FUD".
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That One Guy (profile), 23 Sep 2013 @ 9:40pm

Re:
As opposed to you, who gets proven demonstrably wrong pretty much every single time you bring a legal argument into play to try and back up your claims?

Given it a rest AJ, the condescending attitude might have some merit were you right more often than wrong, but being wrong a good 90-95% of the time and having a condescending, superior attitude is just sad.
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That One Guy (profile), 23 Sep 2013 @ 9:53pm

Re: Re:
Come now, just because they've been dead wrong on every single other technological advancement, and have cried 'DOOM!' over countless advances/technologies that have later turned out to be enormous boons to them, that doesn't mean their credibility and accuracy at spotting that one technology, that one service that will finally drive them under should be called in question does it?
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MrWilson, 23 Sep 2013 @ 10:01pm

Re: Re: Re:
I love the classic responses and hypocritical tactics.

If Mike asserts something, he should prove it. If you assert something, it's just obvious and anyone questioning you is clearly a "Techdirt fanboy." It's impossible to disagree with you without being a dirty pirate criminal because only dirty pirate criminals would disagree with someone who is so clearly right that they shouldn't even be questioned.

Of course we all know you won't actually manage to prove that the harm was irreparable. If high priced lawyers for the entertainment industry can't prove it in court, how will an internet troll whose just looking for attention going to come up with a logical and legally sound argument?
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OldGeezer (profile), 23 Sep 2013 @ 10:11pm

People have been skipping commercials for more than 30 years since VCR's came out. I don't remember the networks crying about that. There were rumors that the advertisers knew we were scanning through them so they arranged them to give subliminal messages in the few seconds it took to zip through each ad. I remember it was pointed out that many of them seemed to put each of a 3 or 4 word ad slogan in large letters for seconds at a time so it can still be read at high speed. Perhaps there was some truth to that. Doing some estimates for an average viewer in that 30 years could have probably saved a year and a half to 2 years or more of your life otherwise wasted watching commercials.
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Anonymous Coward, 23 Sep 2013 @ 10:32pm

Re: Re: Re:
You can't even correctly define an acronym that you yourself are using. Perhaps a Google search would help you.
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Anonymous Coward, 23 Sep 2013 @ 10:32pm

Re:
We all know the truly serious people back up their legal conclusions with Pastebin screeds.
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Zem, 23 Sep 2013 @ 10:53pm

Fox is a dish best served cold.
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Anonymous Coward, 23 Sep 2013 @ 11:04pm

Re:
An injunction will not issue, however, unless the record establishes that this harm
is irreparable. See Perfect 10, Inc. v. Amazon.com, 508 F.3d at 1158. Economic injury
alone will not support a finding of irreparable harm because it can generally be remedied
by money damages. See Pyro Speculators North, Inc. v Souza, 861 F. Supp. 2d 1079,
1092 (E.D. Cal, 2012) (citing Rent-A-Center, Inc., 944 F.2d at 603). Although
"intangible injuries, such as damages to ongoing recruitment efforts and goodwill, qualify
as irreparable harm," id, the current record does not support a finding of such injuries.
Instead, the record suggests that the extent of harm caused by the QA copies is calculable
in money damages. The fact that Fox has licensing agreements with other companies
shows that copies of the Fox Programs have a market value that other companies already
pay in exchange for the right to use the copies. Although Fox has submitted evidence
that some irreparable harms, such as loss of control over its copyrighted works and loss
of advertising revenue, may stern from the ad-skipping use to which the QA copies are
put, the record does not show that those harms flow from the QA copies themselves.
MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293, 1306 n.3 (C.D. Cal. 2007) (noting that
the irreparable harm inquiry is dependent on "the harm suffered as a result of the
defendant's allegedly unlawful actions"). Rather, if those harms were to materialize, they
would be a result of the ad-skipping itself, which does not constitute any copyright or
contract breach. Because the alleged harms that Fox will suffer as a result of the QA
copies is essentially contractual in nature, the Court finds that the injury is compensable
with money damages and does not support a finding of irreparable harm. See Pyro
Speculators, 861 F. Supp. 2d at 1092.
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Anonymous Coward, 23 Sep 2013 @ 11:09pm

Re:
You're projecting.
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Anonymous Coward, 23 Sep 2013 @ 11:16pm

Not surprisingly, average_jacktard and out_of_the_asscrack are flailing their arms wildly in support of the people who famously claimed that if you turn your eyes away from the television screen while an advertisement is on, you're stealing. Exceptions begrudgingly made for having to go to the toilet, you weaklings.

average_joe and out_of_the_blue just hate it when due process is enforced.
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Anonymous Coward, 24 Sep 2013 @ 12:00am

Re: Re:
And barnyard noises. Month after month after fucking month of barnyard noises.
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Anonymous Coward, 24 Sep 2013 @ 12:24am

Re:
AJ could you please show how there is any harm at all let alone irreparable harm?

The onus is on Fox and co to prove the irreparable harm not the other way round as it was Fox making the accusation.
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Anonymous Coward, 24 Sep 2013 @ 2:01am

they need to be careful. assuming that Fox is one of Murdoch's babies, there could be hacking going on all over the place!! phone calls will ever be safe again! they're gonna be caught between him and the NSA. what a predicament!!
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Anonymous Coward, 24 Sep 2013 @ 2:08am

Re: Re:
This is typical for AJ. Argumentative on any issue, even if they are ridiculous and not afraid of having different moral obligations for others compared to himself.

As far as I remember AJ was hurt by something Mike Masnick said in person and now he seeks revenge by trying to discredit everything he writes. It is a sad emotional crusade indeed.
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Shadow Dragon (profile), 24 Sep 2013 @ 2:28am

Re: Re: Re:
What about out of his mind,what's Chris reasons? Attention or Boredom.
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Sheogorath (profile), 24 Sep 2013 @ 3:04am

Ad skipping is old
Way back when, people would use the toilet or brew a cuppa when the ads were on, but I don't see Fox et al. suing them, nor are they suing JVC for people's ability to record the show and fast forward through the ads when watching it back. The fact is, Fox et al. are suing DISH for basically automating something that American people have been doing since the sale of the first VHS VCR, and I can't help wondering if Matt Groening is making a Simpsons episode about it yet.
OldGeezer said: There were rumors that the advertisers knew we were scanning through [the adverts] so they arranged them to give subliminal messages in the few seconds it took to zip through each ad. I remember it was pointed out that many of them seemed to put each of a 3 or 4 word ad slogan in large letters for seconds at a time so it can still be read at high speed.
Really? Explains my propensity to run around stabbing people while munching LSD-laced popcorn.
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Anonymous Coward, 24 Sep 2013 @ 4:02am

Customers pay for their satellite TV subscription every month. If the customer wants to skip the commercials on a recorded TV show, that's the customer's right and privilege.

To say the customer has no rights over how they use their service for personal consumption, is something only a Copywrong Minimalist would argue.

The Copywrong Minimalists want their double dip profits. First they dip into the end-user's wallet. Then they dip into the TV advertisers wallet.

Just like the phone companies double dipping the spy agencies wallet and the end-users wallet.

The sad part is, the advertisers wouldn't even know if the customer was skipping their recorded commercials or not.

This leaves only one logical conclusion. It's not really the TV broadcasting companies who care about commercial skipping. It's actually the advertisers putting pressure on the broadcast companies to do something about commercial skipping hardware.

It's too bad these advertising bozos don't realize it's been happening since VCR's came on the market. They should have been trying to sue VCR makers back in the 1980's, instead of waiting until 2013.

What a bunch of morons.
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Pragmatic, 24 Sep 2013 @ 4:03am

Re: Re: Re: Re:
Okay, how does annoying viewers by FORCING them to watch adverts they don't want in order to access content benefit anyone?

There is no irreparable harm from giving them the ability to control the way they view content. The content creators can always ask for sponsorship or use product placement to help advertise products. Remember Sony's shout-out in The Spy Who Loved Me? A nice big close-up of the screen with Sony's logo clearly visible.

What I'm saying is, there's no need to force ads on people and it's not infringing to block them or provide a means of blocking them.

I presume the Techdirt trolls watch every ad religiously, from the way they bleat in the comments. Why should we?
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Anonymous Coward, 24 Sep 2013 @ 4:23am

Re: Re: Re: Re: Re:
Worse still, at least two of them admit to using a proxy to mask their IP address. Those monsters!
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Anonymous Coward, 24 Sep 2013 @ 4:36am

Re: Re: Re: Re:
And that was the expected outcome.
I was not disappointed.

Also, note the lack of supporting evidence to substantiate the claim.
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Anonymous Coward, 24 Sep 2013 @ 4:39am

Re:
"I don't remember the networks crying about that"

Like a stuck pig
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Anonymous Coward, 24 Sep 2013 @ 4:55am

The only irreparable harm done was granting the copyright monopoly.
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Anonymous Coward, 24 Sep 2013 @ 5:31am

Re:
Yes - good example of irreparable harm.

When copyright leads to loss of works, it is irreparable.
Loss through lack of maintenance of the medium or intentionally destroyed.
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Anonymous Coward, 24 Sep 2013 @ 5:53am

Re:
They did sue to stop the VCR. Don't you remember Jack Valenti's argument about the VCR?

"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

That's not the only thing they've tried to stop. Player pianos, radio, MP3 players, etc. The entertainment industry despises anything they didn't think of first and/or cannot 100% fully control.

And the only reason they think that way is due to the arrogance resulting from a government granted monopoly.
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DannyB (profile), 24 Sep 2013 @ 6:24am

Re: Irreparable?
> Hey, Mike. Do you even know what "irreparable" means in this context?

Let me try:

ir�rep�a�ra�ble
iˈrep(ə)rəbəl/
adjective
1.
(of an injury or loss) impossible to rectify or repair.
"the damage copyright did to OOTB's brain is irreparable!"

Hope that helps clarify.
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Anonymous Coward, 24 Sep 2013 @ 6:31am

Re:
So the US government granted a monopoly over certain parts of the airwaves to some of their buddies to make money trying to attract eyeballs to corporate advertising through creating content. Broadcast television is on its way out as the way to get content to consumers...and they don't want the advertising...and innovators are giving consumers what they want. Your idea of "irreparable" is interruption of an old, failing business model.
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Chuck Norris' Enemy (deceased) (profile), 24 Sep 2013 @ 6:37am

Re:
Isn't it the burden of the network to show irreparable harm to the court? If they failed to show this or to convince the court of such harm then Mike has no reason to defend against your petty argument, whereas, the mighty law (of whom you are such a strong believer) has already determined there is none.
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Gwiz (profile), 24 Sep 2013 @ 8:24am

Re: Re: Re:
....his reputation is based solely on the one long-ago quip of "Streisand Effect"...

No, Mike's reputation is most certainly not "based solely" on that, moron.

It's based on 15 years of blog posts that he has signed his name to.

Which about 10,000 times the worth of a chicken shit commenter who won't even register an account at Techdirt because they are afraid of being held to their own words. Face it Blue, you are nothing more than a piece of crud on the bottom of the internet's shoe when it comes to reputation.
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John Fenderson (profile), 24 Sep 2013 @ 9:43am

Re:
I don't remember the networks crying about that.

You must be a young 'un -- because their sobs were heard the next galaxy over.
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JMT (profile), 24 Sep 2013 @ 3:50pm

Re:
"Hey, Mike. Do you even know what "irreparable" means in this context? If so, you don't demonstrate it in your post. Care to elaborate on how you determined the harm here wasn't irreparable?"

Hey, AJ. Since you clearly know what "irreparable" means in this context, and we don't, why don't you explain to us this special meaning of a relatively common word?

Then, care to elaborate on why you think the harm here was irreparable? You clearly think it was or you wouldn't feel the need to ask the question.

Also note that the Court decided there was no irreparable harm, so it'd be interesting to hear why you think they're wrong too.
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Rekrul, 24 Sep 2013 @ 4:28pm

The TV networks brought this upon themselves
Back in the 70s, each hour of programming only had 3-4 commercials breaks and they only accounted for 8-10 minutes out of the hour. Now, there are 8-10 commercial breaks per hour and they add up to around 20 minutes. A full one-third of every hour is nothing but ads.

When auto-skip features become commonplace, they will take the next logical step; Ads that can't be skipped. They will shrink the actual image and puts ads down the side of the screen and across the bottom while the show is on. It sounds crazy now, but so would the idea of popup ads across the bottom of the picture, 20 years ago.
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Digger, 24 Sep 2013 @ 6:48pm

Listen up Broadcasters....
Your days are numbered.

DISH's service does nothing to infringe in any way shape or form.

The owner has to choose to enable the feature.

All this feature does is *automate* what the owner was already doing.

I for one have *hopped* commercials for years, by recording the shows I want to watch, and pressing "forward" when commercials attacked me with high-volume rhetoric that I was totally uninterested in.

DISH buys your programming, transmits it in FULL to the consumer, who then decides to opt out of your bullshit.

There you have it - DISH doesn't infringe, your case is senseless, baseless and full of what you're shoveling to the courts - SHIT!

So shut the fuck up, and forget about it - you aren't going to win this one, or any other case against it.

Bye-bye, too bad, so sad... go cry to yobama...
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OldGeezer (profile), 24 Sep 2013 @ 9:17pm

Re: The TV networks brought this upon themselves
Your thought is not so far fetched. When they do pull this it will signal the end of network TV. The animated pop-ups now are too annoying. "You Are Now Watching..." (like I'm too stupid to know that!) "Coming up Next..." (Like there aren't plenty of sites that have the schedules so I could find that out if I did not know) "Premiering Next Week..." "Season Finale.." etc. etc. And whose bright idea was it to overlap the ending credits with the first scene of the next program squeezing the picture and putting the credits on the lower third of the screen so small you can't read them if you wanted to? Even premuim channels do some of this crap and have those annoying watermarks. HBO is just about the only channel that has held out.
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Anonymous Coward, 26 Sep 2013 @ 12:12am

Re:
You do not prove a negative. This is, in fact, impossible to do. It is the claimants responsibility to prove irreparable harm, and the court ruled they did not do so. In this, it is then your responsibility to demonstrate why you thought they were wrong in their determination.
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Rekrul, 27 Sep 2013 @ 11:43pm

Re: Re: The TV networks brought this upon themselves
I hate the damn logos, but I can think of one good use for them. Since they only appear on the show itself and not the ads (I was once told that they legally can't place them on commercials) you could use a little AI and the logo to perfectly skip the commercial breaks on recorded shows.
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