Dish Agrees To Make Ad-Skipping DVR Less Useful In Settlement With Comcast, NBC Universal

from the dumb,-protracted-waste-of-money dept

For years now, broadcasters have waged an unrelenting legal war on Dish network for giving consumers what they want: namely a DVR that automatically skips advertisements users weren't watching anyway. Fox, CBS and NBC Universal collectively sued Dish back in 2012, claiming that the ad-skipping technology embedded in its "Hopper" DVR violated copyright. CBS took this fight to some bizarre and troubling lengths, going so far as to pressure CBS-owned CNET to avoid reviewing the device and even demanding CNET back down from giving Hopper a CES award back in 2013.

In 2014, CBS and Disney both settled their suits, with Dish agreeing to cripple the ad-skipping technology for new programs, in exchange for streaming licensing for use by Sling TV. Fox continued to press on, and while Fox won on some contract issues regarding whether Dish could offer recorded content outside the home, it lost on most of its copyright claims -- settling with Dish earlier this year.

That only left Comcast NBC Universal, which held out longer in part because Dish (and Sling TV) are direct competitors to Comcast's own cable TV services, but also because the two sides were engaged in a larger debate over retransmission contracts. But even Comcast NBC Universal agreed to settle with Dish this week, finally bringing the legal fisticuffs to an end. As with the other settlements, Dish had to agree to cripple some of its ad-skipping DVR functionality if it wanted to not only settle the case, but get a hold of NBC content for streaming video:

"On Thursday, the last of the lawsuits, the one that was filed by NBC, was stipulated for dismissal. The parties have reached a settlement that will limit ad-skipping until after seven days from a show's broadcast airing. According to a statement from an NBCU spokesperson, "NBCUniversal and DISH Network have reached an agreement resulting in the dismissal of all pending litigation between the two companies, including disputes over the AutoHop and PrimeTime Anytime features."

That puts to bed a multi-million-dollar legal battle that raged for four years -- all because Dish made it easier for consumers to do something they were doing anyway. And while it's great this particularly stupid saga has finally been put to bed, it's obviously only a matter of time before broadcaster lawyers find some new, consumer-friendly advancement they'd prefer didn't exist.

Filed Under: ad skipping, dvr, settlement
Companies: comcast, dish, nbc universal

Dish Agrees To Cripple Its Ad-Skipping DVR To Settle Fox Lawsuit

from the negotiating-away-innovation dept

For years now, broadcasters have waged legal war on Dish network for giving consumers what they want: namely a DVR that automatically skips advertisements users weren't watching anyway. Fox, CBS and NBC Universal all sued Dish back in 2012, claiming that the ad-skipping technology embedded in its "Hopper" DVR violated copyright. Most of the lawsuits were packed with hilariously baseless claims, like Fox ignoring the Betamax case to breathlessly insist that merely recording the entire prime time lineup was making "bootleg" copies of Fox's broadcasts.

Disney and CBS' lawsuits were settled in 2014, with Dish agreeing to hamstring Hopper's skipping functionality in exchange for not only an end to legal hostilities, but access to streaming video rights for its Sling TV service. Fox however continued to push its luck in the courts with decidedly mixed results; losing on many of the copyright claims, but winning on a few contractual issues. For example, the courts agreed that Hopper's ability to download recorded content to mobile phones violated contract restrictions against the copying of programming for use outside the home.

With the arrival of 2016, however, comes word that Dish and Fox have finally ended their protracted legal battle. According to the companies' statement, Dish has, as it did with CBS and Disney, agreed to further cripple its DVR's ad-skipping functionality:

"Fox Networks Group and Dish Network L.L.C. have reached an agreement resulting in the dismissal of all pending litigation between the two companies, including disputes over Slingbox technology and the AutoHop, PrimeTime Anytime and Transfers features,” Dish said in the statement. "As part of the settlement, Dish’s AutoHop commercial-skipping functionality will not be available for owned and affiliated Fox stations until seven days after a program first airs.”

Though it's not indicated by the companies' announcement, the settlement likely also involves some broader access to Fox content for use in Dish's Sling TV service, so the deal's probably not a total evolutionary wash. Still, the end result is one of the most popular and innovative DVRs on the market being crippled just to make legacy broadcast executives feel more comfortable as their empires face earth-shaking disruption on every front.

With the exception of Comcast NBC Universal (which, not coincidentally, directly competes with Dish as a cable provider), all of the original 2012 lawsuits have now been put to bed -- but at the cost of innovation and customer satisfaction.

Filed Under: ad skipping, commercial skipping, content, copyright, dvr, hopper
Companies: dish, fox

Court Says Dish's Hopper Technology Does Not Infringe On Copyrights

from the good-to-see dept

Another day, another good ruling on copyright. Yesterday, we had the 9th Circuit ruling saying that Costco can buy watches abroad and sell them in the US and it's not copyright infringement (and, in fact, may be copyright misuse to allege otherwise), and late last night (just as the State of the Union was going on), a district court in California released a redacted version of a ruling (that was actually made last week) that said that Dish's Hopper technology does not infringe on copyrights. We've been covering this case for a while. Dish offered up a technology that would automatically record prime time TV shows and then skip over the commercials, and the various networks all sued. While Dish has unfortunately negotiated away this innovation in deals with CBS and ABC, the case involving Fox was still moving forward (the NBC version of the case was put on hold pending the Fox version).

The latest ruling is not a complete victory for Dish, but it is a complete victory on the copyright issues. Where Dish may run into trouble is on contractual agreements. But, this ruling is definitely a win for copyright. There are a few different issues and different parts of Dish's offering that were under scrutiny here, so let's break them out (as the court does). The first issue, was that Fox claimed that the Supreme Court's Aereo ruling now meant that Dish was engaging in a public performance with its Dish Anywhere offering. But the court doesn't buy it. First, it notes that, even under the "looks like a duck" Aereo test, Dish's service doesn't look enough like a duck.

The Aereo Court cited three points of comparison that established Aereo’s “overwhelming likeness” to traditional cable providers: (1) Aereo sold a service that allowed subscribers to watch television programs almost as they were being broadcast; (2) Aereo used its own equipment, housed in a centralized warehouse, outside of its users’ homes; and (3) by means of its technology (antennas, transcoders, and servers), Aereo’s system received programs that had been released to the public and carried them by private channels to the additional viewers....

DISH Anywhere also allows subscribers to watch television programs almost as they are being broadcast.... DISH Anywhere depends on equipment and technology both inside and outside of the user’s home....

DISH does not, however, receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did. DISH has a license for the analogous initial retransmission of the programming to users via satellite.... Aereo streamed a subscriber-specific copy of its programing from Aereo’s hard drive to the subscriber’s screen via individual satellite when the subscriber requested it, whereas DISH Anywhere can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box.... Any subsequent transfer of the programming by DISH Anywhere takes place after the subscriber has validly received it, whereas Aereo transmitted its programming to subscribers directly, without a license to do so.

.... The ultimate function of DISH Anywhere is to transmit programming that is already legitimately on a user’s in-home hardware to a user’s Internet-connected mobile device. Relying on external servers and equipment to ensure that content travels between those devices properly does not transform that service into a traditional cable company. Aereo’s holding that entities bearing an “overwhelming likeness” to cable companies publicly perform within the meaning of the Transmit Clause does not extend to DISH Anywhere.

From there, the court takes on the question of "volitional conduct" -- which many thought would be the key point on which Aereo would turn, until the Supreme Court decided to go swimming with ducks. The key part being who is actually making the copies (or whose conduct is making the copies) and are they infringing. And, as in the Cablevision case (on remote DVRs), the court notes that it's the user doing the key action, not Dish, the company:

This process depends to some extent on external equipment and services provided by DISH, but it is the user who initiates the process, selects the content, and receives the transmission. No DISH employee actively responds to the user’s specific request or directly intervenes in the process of sending the programming between the devices.... DISH subscribers, not DISH, engage in the volitional conduct necessary for any direct infringement.

Okay, but what about secondary infringement? Does Dish somehow push its subscribers to infringe? Nope. Once again, because there's no public performance, and thus no infringement. Again, the court relies on the distinctions with the Aereo ruling, and how nothing involved with Dish is infringing. Dish has a license for the content. Users are able to make use of that content on their own home device thanks to the Sony Betamax ruling, and thus, where's the infringement?

When an individual DISH subscriber transmits programming rightfully in her possession to another device, that transmission does not travel to “a large number of people who are unknown to each other.” The transmission travels either to the subscriber herself or to someone in her household using an authenticated device. This is simply not a “public” performance within the meaning of the Transmit Clause. Because DISH Anywhere subscribers do not directly infringe the public performance right, DISH cannot be liable for secondary infringement.

Next up was the "Prime Time Any Time" (PTAT) technology that automatically recorded all the prime time shows for subscribers to watch over the following week. Fox had already lost on this point two years ago, but it tried to bring it back from the dead under Aereo. No dice. The court, again, finds that the volitional conduct remains with the subscriber:

Fox contends that Aereo has altered the test for direct infringement by rejecting the argument that only the subscriber who pushes the button initiating the infringing process is liable for direct infringement.... As discussed above, Aereo did not fundamentally alter the volitional conduct requirement for direct infringement. More than one actor may be liable for direct infringement, but there must still be some volitional conduct for direct liability. A system that operates automatically at a user’s command to make a recording does not in itself render the system’s provider a volitional actor for purposes of direct copyright infringement.... While DISH has set certain parameters and controls for PTAT, PTAT is essentially a more targeted version of a DVR that is set to make block recordings or recordings of an entire season of a show. The ability to set a DVR and then leave it to automatically record without having to select individual programs or set it repeatedly for each recording occasion is not unique to PTAT, and is not enough to show direct infringement by the service provider.

Separately (and importantly) the court rejects Fox's argument that merely "making available" a work is "distribution." This is a big fight in the copyright world, with copyright system maximalists and defenders insisting that "making available" is synonymous with distribution under the law. The court says no:

PTAT does not “distribute” Fox’s programming or “transmit” any public performance under the meaning of the Copyright Act. Distribution under the Copyright Act requires “actual dissemination of a copy” that “changes hands.”...

On appeal of this Court’s denial of its request for a preliminary injunction, Fox argued (in the contract breach context) that “distribute” simply means to “make available.”.... While neither the Ninth Circuit nor any other circuit court has addressed the “make available” theory of distribution under the Copyright Act, it has been considered by a number of courts, and “[t]he great majority of courts that have considered the question . . . have stopped short of fully endorsing the ‘make available’ right.”... This Court finds these cases persuasive and concludes that DISH’s act of merely “making available” copyrighted programming to its subscribers through PTAT does not amount to distribution without actual dissemination.

The court also rejects Fox's claims that PTAT shouldn't be seen as fair use because it impacts Fox's market for licensing its programs to various internet services. The court points out that this argument "is simply too speculative to defeat a finding of fair use by a time-shifting technology which enables consumers' non-commercial private use of recorded programming."

The only copyright "victory" for Fox is the same as the ruling from two years ago: the court says that various Quality Assurance (QA) copies that Dish employees made of programming did infringe the reproduction right, but that's a really, really minor side issue and doesn't really impact the overall service at all.

Fox has already said it's disappointed in the ruling, which means there's a decent chance for an appeal... if Dish doesn't cave in and work out an agreement like it did with CBS and ABC. And, of course, as a district court ruling, this ruling doesn't provide much of a precedent for anywhere else, but it's still nice to see a good ruling come out.

Filed Under: autohopper, copyright, dish anywhere, dvr, fair use, hopper, prime time any time, public performance, remote dvr
Companies: aereo, dish, fox

As Expected, Aereo Pleads Its Case For Survival

from the cable-company dept

Aereo is back in a district court trying its "okay, fine, you say we look like a duck, we'll act like a duck" explanation so that it can stay in business and pay the statutory rates for a cable company. As you hopefully know by now, this is in response to the Supreme Court's "you're a cable company!" ruling. The broadcasters, of course, just want Aereo to die, so they claim that even if the Supreme Court declared it a cable company, the company still can't pay statutory rates. Aereo tried to skip the district court and go straight to the appeals court, but that attempt was (probably rightfully) rejected recently, so now it's back at the district court, once again making the case for it being a cable company.

Its key argument is, basically that, during oral arguments, Justice Sotomayor more or less said if the Court finds Aereo to be a cable company, then it could just pay Section 111 statutory fees and be legal.

JUSTICE SOTOMAYOR: . . . But I look at the definition of a cable company, and it seems to fit. . . . [Aereo] [m]akes secondary transmissions by wires, cables, or other communication channels. It seems to me that a little antenna with a dime fits that definition. To subscribing members of the public who pay for such service. I mean, I read it and I say, why aren't they a cable company?

MR. CLEMENT: Well, Justice Sotomayor, a couple of things. First of all, I mean, I think if you're—if you’re already at that point, you’ve probably understood that just like a cable company, they’re public—they’re publicly performing and maybe they qualify as a cable company and maybe they could qualify for the compulsory license that's available to cable companies under Section 111 of the statute.

JUSTICE SOTOMAYOR: But it just gets it mixed up. Do we have to go to all of those other questions if we find that they’re a cable company? We say they’re a c[]able company, they get the compulsory license.

At the time, most folks kinda wondered why Sotomayor was going off on this tangent, rather than on the key issues related to the case, concerning the public performance right. What people didn't expect was that the Court would come up with its wacky "looks like a duck" test. But since it did, it certainly seemed to imply that Aereo could just get the compulsory license -- which it's now seeking to do. The company further argues that Justice Breyer, who authored the majority decision, fretted during oral arguments that it would be problematic if Aereo were not allowed to get a compulsory license:

JUSTICE BREYER: Once you take them out of the compulsory licensing system, they're going to have to find copyright owners, who owns James Agee's pictures? Who owns something that was written by—like a French silent film in 1915? I mean, the problem is that they might want to have perfectly good things that people want to watch and they can't find out how to get permission. That is a problem that worries me and it worries me again once you kick them out of the other systems.

Aereo also counters the broadcasters argument that the ivi ruling says that online streaming services can't qualify as cable companies for statutory rates doesn't apply here. Earlier, Aereo argued that the Supreme Court ruling effectively overturned the ivi ruling -- an argument that makes a lot of sense. But here, Aereo goes even further, noting some key differences between ivi and Aereo, including a pretty big one: ivi was "geographically unbounded." That was a key part of why ivi lost, and Aereo notes that its service is different, in that it offered a geographically-specific service.

First, the technology at issue in ivi involved geographically unbounded transmissions, which the Second Circuit noted was “vastly different” from the technology in Fortnightly and Teleprompter.... By contrast, the Supreme Court found that, with respect to “Watch Now,” Aereo is “overwhelming[ly] like[]” and “highly similar” to the technology in Fortnightly and Teleprompter.... As a result, this case is factually distinguishable from ivi on the very point that drove the Second Circuit’s decision. Indeed, the unrestricted nature of ivi’s transmissions was the determinative fact for the Second Circuit, which noted that Section 111’s compulsory license scheme was intended to support local market—rather than national market—systems.... As a result, the court found that ivi’s nationwide retransmission did not seek to address the important issues of availability of local over-the-air television signals, and it was therefore not the type of service Congress intended the compulsory license to cover.... Because Aereo’s “Watch Now” technology does not give its subscribers access to broadcasts outside of their home DMA, and instead gives only geographically-restricted access (with and through corresponding local physical antenna facilities), and because (as the Supreme Court found) the technology is “virtually identical” to the technology Congress addressed in the 1976 Amendments, Aereo’s “Watch Now” technology is not governed by ivi.

Aereo makes another interesting argument for survival as well. Even if it doesn't qualify for Section 111 compulsory rates, it should still be allowed to keep its "Watch Now" feature working, because of the DMCA. Basically, it's saying that even if the DVR functionality is deemed infringing, it has a stronger argument around the live streaming, based on the DMCA. All the parenthetical quotes supporting this are from the Supreme Court's ruling...

If the Court concludes that Aereo is not entitled to a Section 111 license, a preliminary injunction should still not enter because Aereo is entitled to the 17 U.S.C. § 512(a) [DMCA] safe harbor because its “Watch Now” function is a “transitory digital network communication.” Each of the Section 512(a) elements is satisfied and undisputed. First, the transmissions of the material are initiated by or at the direction of a person other than Aereo.... (“Aereo’s system remains inert until a subscriber indicates that she wants to watch a program.”). Second, the transmission, routing, and storage of material are carried out through an automatic process, without selection of the material by Aereo.... (“in automatic response to the subscriber’s request”); ... (agreeing with dissent that Aereo does not “select” the content). Third, Aereo does not select the recipients of the material, except as an automated response to the user.... (“When an Aereo subscriber selects a program to watch, Aereo streams the program over the Internet to that subscriber.”). Fourth, no copy of the material transmitted is made accessible to anyone but the user who made it, and no “Watch Now” copy is kept for a longer period than is reasonably necessary.... (“It streams the content of the copy to the same subscriber and to no one else.”); ... (“If the user does not press ‘Record’ before the program ends, the copy of the program created for and used to transmit the program to the user is automatically deleted when it has finished playing.”);... (“The file saved to the hard disk using the ‘Watch [Now]’ function is not automatically retained unless the user clicks ‘Record’ while the show is still open on the user’s web browser.”). Fifth, the material is transmitted without modification of its content....

As a result of satisfying this safe harbor provision, Aereo cannot be liable for the claimed “public performance” of Plaintiffs’ claimed copyrighted works. And, Plaintiffs’ requested preliminary injunction cannot be entered because it is outside the scope of a permitted injunction under the DMCA.

That could lead to some interesting legal questions going forward.

Finally, Aereo argues that no injunction is necessary, because there's no evidence of "irreparable harm." Here it probably hurts that CBS and other networks more or less admitted that even if Aereo had won the "harm" would be minimal.

The Section 111 arguments about whether or not it's a cable company will continue to make the headlines, but the DMCA argument here may be the most interesting one of all (and one that the broadcasters will most freak out about).

Filed Under: broadcast tv, cable company, copyright, dmca, dvr, networks, section 111, streaming
Companies: abc, aereo, cbs

TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length

from the wherefore-art-thou-roamio dept

TiVo has released a new product called "Roamio" which looks suspiciously like the recently-declared-infringing Aereo. Roamio lets users "record, store and playback" over the air programming. Just like Aereo. There's just one distinction -- and it apparently makes all the difference in the world: Roamio's cable length is a lot shorter. As David Post notes, while Aereo and Roamio's services are nearly identical, the length of the cable changes the legal dynamic:

I’m pretty confident that the new TiVo box steers clear of any copyright problems — not the first time, and probably not the last time, that our too-complex and illogical copyright law draws opposite conclusions when applied to functionally equivalent technology. The new Roamio is the precise analogue of the Sony Betamax – just a box allowing customers to record that to which they already had free access, and to play those recordings back to themselves — the distribution of which, the Court declared way back in 1984 in the seminal Sony v. Universal case, did not constitute copyright infringement. Aereo tried to make this argument (that it was just a Betamax dressed up in new technological garb) but failed – in part because it was supplying not only the recording/playback capability, but the antenna itself, to customers. This seemed to be important to the Court, because it made it more difficult for Aereo to argue that it was just recording material the customer already “owned”; no, the Court said, Aereo was actually going out and getting this content for the customer, and then recording it, which took it out from under the Sony no-infringement umbrella. More importantly, but sticking a separate box in each user’s home, TiVo avoids the charge that was fatal to Aereo, with its centralized facility: that it is “publicly performing” the copyrighted programs in the OTA broadcasts. It’s close to impossible to argue that TiVo is somehow publicly performing copyrighted works by selling these boxes – whatever “performances” take place inside users’ home are pretty clearly non-infringing “private” performances.

In short -- just as we've pointed out from the beginning -- the only basis on which Aereo might be infringing is that the copyright law is different if you have a short cable between the antenna and your screen (TiVo) or a long cable (Aereo). It seems somewhat ridiculous that the length of the cable could possibly change the analysis of a copyright case, but welcome to today's nonsensical copyright regime.

Of course, Post notes that the broadcasters still might try to sue anyway, and that does seem likely. Remember, they're already suing DISH over its advanced DVR technologies. And the networks actually are trying to claim that the Aereo ruling helps them in that case (though it's a very weak argument). So there's a half decent chance they'll sue Tivo over Roamio as well.

It seems fairly clear at this point: the broadcasters have decided that any innovation that lets the public watch TV in a better way must be an existential threat that should be sued out of existence. It's felony interference with a business model, and tragically, copyright law seems to be the most popular and distorted tool for those claims.

Filed Under: broadcast tv, cable length, copyright, dvr, over the air tv, roamio, tv
Companies: aereo, tivo

Fox Loses Yet Again Against Dish Autohopper; Appeals Court Ignores Silly Aereo Argument

from the innovation-allowed dept

Some good news on the innovation front. Following on Fox's big initial loss in trying to stop Dish's Autohopper DVR feature, an appeals court has upheld the ruling. The main issue? Fox completely failed to show how an injunction is necessary to stop "irreparable harm." The court is pretty sure that any "harm" would be quite "reparable." There isn't much analysis -- the court just clearly is not convinced. Beyond saying that the district court didn't make any legal errors in issuing the original ruling, the appeals court notes that the service has been available for a while already, kinda disproving the whole "irreparable harm" argument.

Here, the district court found that Fox’s lack of evidence that the complained-of technology, available for several years, had yet caused Fox’s business any harm weighed against Fox’s argument that it would be irreparably harmed absent a preliminary injunction. In so finding, the district court did not hold Fox’s evidence to a more rigorous standard than our law requires and so did not abuse its discretion.

Perhaps more importantly, the court totally and completely ignored Fox's ridiculous attempt to argue that the Aereo ruling supports its position. That was a crazy argument from the very beginning, and clearly attempted to stretch the whole "looks like a duck" test beyond the breaking point. As Dish had pointed out in its response, Aereo lost because it didn't have licenses. Dish has licenses, so it's not even close to being relevant. The court appears to have treated it with the amount of respect Fox's argument deserved: none.

Filed Under: autohopper, dvr, networks, place shifting, primetime any time
Companies: aereo, dish, fox

Aereo Fallout Begins: Fox Uses Ruling To Attack Dish's Mobile Streaming Service

from the because-welcome-to-this-new-mess dept

We've been saying that the Aereo ruling is going to create a litigation headache for a number of companies... and here we go. You may recall that a bunch of TV broadcasters have sued Dish over its attempts to provide innovative features to consumers, such as its Dish AutoHopper and its Dish Anywhere streaming offering. So far, those lawsuits have gone nowhere and fast. But Fox sees renewed life in its effort to shut down innovation thanks to the Supreme Court's unfortunate "looks like a duck" test.

Within hours of Wednesday's ruling, Fox had run to the 9th Circuit appeals court with the news. The 9th Circuit had previously rejected Fox's attempt to shut down the Dish technology, but Aereo has renewed its hopes of killing some innovation:

Fox's lawyers believe the Aereo ruling strengthens their case against Dish. In a letter to the court Richard Stone, partner at Jenner & Block, wrote that the supreme court had ruled Aereo's service constitutes an "unauthorized public performance of Fox's copyrighted works."

"Dish, which engages in virtually identical conduct when it streams Fox’s programming to Dish subscribers over the internet – albeit also in violation of an express contractual prohibition – has repeatedly raised the same defenses as Aereo which have now been rejected by the supreme court," he wrote.

Stone highlighted that the court had specifically rejected Aereo's assertion that it is "merely and equipment provider" and that Aereo's subscribers were the ones transmitting content.

Get ready, because Aereo is going to get cited a lot by the legacy entertainment industry as they quickly seek to destroy innovation.

Filed Under: autohopper, copyright, dish anywhere, dvr, looks like a duck, remote viewing, streaming
Companies: aereo, dish, fox

CBS Wants Dish To Make Their Ad-Skipping Hopper DVR Even Less Useful If They Want Streaming Video Rights

from the just-get-the-hell-out-of-the-way dept

As we recently noted, Dish has announced a new content distribution deal with CBS that's quite the double-edged sword. On one hand, Dish has agreed to cripple the ad-skipping feature on their Hopper DVR for ABC and Disney content for the first three days after a new episode airs. In exchange for Dish making their service less useful, ABC has agreed to drop their absurd lawsuit claiming that ad-skipping violates copyright. ABC has also agreed to loosen up restrictions on streaming content, allowing Dish to potentially offer an "over the top" Internet video streaming service sometime down the road.

This has, of course, resulted in the usual press hype from reporters who don't understand how difficult broadcasters make getting these types of services off the ground (just ask Intel, Sony, Microsoft, Apple, Google, and countless startups). Bloomberg, for example, right after telling readers it's too early to speculate on price for such a service, immediately proceeds to speculate on price for such a service -- claiming a new Dish Internet TV service would only cost users between "$20 and $30 a month."

There's still a lot of things standing in Dish's way -- assuming Dish is competent enough to craft a decent service in the first place. We can't read the contract, so we have no idea what restrictions Disney, ABC and ESPN are going to layer on this new licensing agreement to cripple it to the point of uselessness (oh hi Hulu, didn't see you standing there). Dish also needs to sign on a lot more broadcasters to flesh out a service catalog, something that's not going to be easy. Quickly proving that point, CBS CEO Les Moonves stated at an investor conference he's going to expect Dish to cripple Hopper much more severely if Dish expects a similar deal from CBS:

"Mr. Moonves, speaking at a Morgan Stanley investor conference, said the arrangement is "not quite enough for us." Several broadcasters, including CBS, say increasing numbers of viewers are watching TV shows more than three days after they air, via DVRs or on-demand services. Mr. Moonves has been among the executives pushing for the industry to shift to a model where advertisers pay for seven days of viewing instead of three. He said CBS's carriage deal with Dish expires this year, and he expects to take a different approach than Disney in the negotiations with Dish Chairman Charlie Ergen. "We are going to want to do some different things," he said, noting that Disney has different assets and priorities."

Who knows what kind of demands CBS is going to make, but it's pretty clear the demands will include making the Hopper DVR even less useful, while saddling any streaming agreement with just enough restrictions to prevent it from actually being disruptive. On one hand it could make sense for Dish to tell CBS to go to hell, as the broadcasters losing in court would set precedent that protects ad skipping from copyright claims. On the other hand, doing that would mean yet another over the top disruptive Internet TV service would die in the cradle thanks to myopic, terrified broadcasters.

Filed Under: dvr, hopper, television
Companies: abc, cbs, dish, disney

Dish Cripples Hopper For ABC In Exchange For Internet Streaming Rights

from the tit-for-tat dept

Not long ago, Dish Networks introduced a new DVR called Hopper that tries something rather unique: it actually offers features that make users happy, such as the ability to automatically skip ads (something users were doing anyway). Once again claiming that giving consumers what they want would destroy the TV universe as we know it, broadcasters quickly responded by suing Dish and claiming that Hopper's ad-skipping technology violated copyright. The cases haven't been particularly successful for broadcasters, who've found themselves swatted back by the courts on several key issues.

Now Dish has struck a new long-term programming deal with ABC that will lock down Hopper's ad-skipping technology so it can't be used on new episodes until three days after they air. In exchange, ABC will immediately agree to drop their lawsuit against Dish. It's unfortunate that Dish chose to buckle and make Hopper less useful to consumers, and restricting functionality only acts to make the TV viewing experience even more fractured and confusing than it already is. Which content will ad-skipping work on? Which online streaming service has locked down the exclusive contract for content I enjoy?

On the other hand, a statement by Dish indicates that the company didn't walk away empty handed; they appear to have used ad-skipping as leverage to get broader licensing for an online TV service that may or may not ever launch:

"The extensive and expanded distribution agreement grants DISH rights to stream cleared linear and video-on-demand content from the ABC-owned broadcast stations, ABC Family, Disney Channel, ESPN and ESPN2, as part of an Internet delivered, IP-based multichannel offering."

As we've covered at length, the highway of Internet TV innovation is littered with countless corpses of failed Internet TV efforts, none of which could secure the licensing rights to make their ambitions work. While it's important that Dish has secured some Disney licensing rights, it's ridiculous that the company had to make useful hardware less useful in order to do so. Still, in a statement Dish CEO Joe Clayton slathered ABC with a heaping helping of platitudes:

"The creation of this agreement has really been about predicting the future of television with a visionary and forward-leaning partner. Not only will the exceptional Disney, ABC, ESPN entertainment portfolio continue to delight our customers today, but we also have a model from which to deliver exciting new services tomorrow."

Yes, nothing quite says visionary like suing over a feature that simply helps consumers by automating something they were already doing. If Dish strikes similar deals with their new "forward-leaning" broadcast friends we'll never see the lame broadcast argument that ad-skipping violates copyright truly tested in court, preventing useful precedent for future cases. In that sense, Dish struck a short term deal they find useful, while potentially harming innovation long term.

As for this all being worth it because of Dish getting online streaming rights, we can't see the deal specifics, so it's unclear what kind of obnoxious restrictions ABC placed on the streaming content to prevent Dish's over the top service from being truly disruptive (like broadcasters have done repeatedly with Hulu). There's also nothing that guarantees other broadcasters are willing to follow suit with similar deals, since most of them remain utterly terrified of over the top (OTA) TV. A Disney-only online streaming service would be highly limited, and all consumers got in exchange was a DVR that does less than it did before. Visionary, indeed.

Filed Under: dvr, hopper, television
Companies: abc, dish networks

Dish Protects Its Hopper DVR From The Dennis Hopper Estate

from the hey,-man dept

Dish has already had a long and winding road getting its "Hopper" DVR first to market, then keeping it there. The company has been engaged in ongoing disputes with broadcasters, who continue to try and argue that the device violates copyright law because it skips commercials -- and generally provides consumers with interesting, convenient functionality that users might actually want. Fox had no luck killing consumer choice and innovation at the 9th Circuit, and ABC is currently in New York attempting to reverse a New York federal judge's refusal to issue an injunction.

While Dish is busy defending Hopper against broadcasters, it's also busy battling the obvious confusion people often have between digital video recorders and the deceased Easy Rider and Apocalypse Now actor Dennis Hopper. Responding to a broad trademark application by the Hopper estate (aka the Trustees of the Hopper Art Trust), Dish has filed an opposition to protect its ad-skipping DVR. The Hopper Estate registered the "Hopper" trademark in 2012 with an eye on "sunglasses, motorcycle helmets and all sorts of electronic devices." Dish itself filed for a trademark back in 2011 -- before Hopper's death:

"According to Dish's notice of objection, the Dennis Hopper "Hopper" mark "is likely, when used in connection with the goods covered by the subject application, to cause confusion, to cause mistake or to deceive, with consequent injury to [Dish Networks] and the public." Dish says it filed an "intent to use application" back in September of 2011 -- before Dennis Hopper's trustees, before TV broadcasters realized what Charlie Ergen's company was up to -- on "Hopper" in a class of goods covering electrical and scientific apparatus."

Surely after the dispute is settled by the USPTO, there's a middle ground here for both sides to jointly sell motorcycle helmets and a clothing line that somehow combines the edgy, quirky, rambling style of the deceased Blue Velvet actor, with the convenience of being able to "stick it to the man, man" by skipping advertisements.

Filed Under: dvr, hopper, trademark
Companies: dish