For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Sunday, 11 November 2012

Can you skip TV commercials without annoying anyone?

Although for many people in business the answer seems to be 'no', the contrary invariably happens in real world and, possibly, also in courts. Earlier this week, Judge Dolly Gee of the US District Court for the Central District of California refused to grant Fox's first attempt to block Dish Network's advertising-skipping DVR (digital video recording) services, which were introduced last March and are known as "AutoHop" and "PrimeTime Anytime"As explained on Dish's website,
"[t]he Hopper from DISH [which incorporates AutoHop] is a Whole-Home HD DVR that has the capacity to record up to 2,000 hours of television programming ... When you sign up for DISH and order the Hopper, you will enjoy advanced features like PrimeTime Anytime, which will automatically record ABC, CBS, NBC and FOX in HD from 8-11 p.m. EST Monday - Saturday and 7-11 p.m. EST Sundays when it is enabled."
In particular, the Hopper from DISH allows you to "enable AutoHop to automatically skip commercials for most PrimeTime Anytime recordings". 
As noted by the Chicago Tribune, major TV networks are afraid that Dish's AutoHop feature would undermine the advertising revenue that is their key source of funding to produce shows. For this reason Fox had called for a preliminary injunction on AutoHop ahead of a ruling on copyright infringement for unauthorised show recordings. 
Bruno gets depressed when
his most beloved
Grey's Anatomy
is invariably interrupted by ads ...
Judge Gee denied Fox's motion for preliminary injunction. This Kat could not see the text of the ruling (which relates to case CV 12-04529), because it has not been publicly circulated yet, as the Court is first giving the parties an opportunity to redact confidential trade information. However, according to a statement released by Dish, the judge held that:
·         Contrary to Fox’s assertion, Dish customers using PrimeTime Anytime cannot be liable for copyright infringement;
·         Copies made using the Hopper’s PrimeTime Anytime feature do not infringe on Fox’s exclusive reproduction rights under federal copyright laws;
·         Neither the AutoHop commercial-skipping feature nor the PrimeTime Anytime feature constitutes unauthorised distribution under federal copyright laws;
·         AutoHop does not violate the Video-On-Demand provisions of the 2010 retransmission consent agreement (RTC) between Fox and Dish;
·         Copies of Fox programs that Dish makes as part of its “quality assurance” of AutoHop’s functionality likely violate the RTC between Dish and Fox, and likely violate Fox’s exclusive reproduction right under federal copyright laws, but:
·         Fox has not established that is has suffered irreparable harm as a result of Dish’s making the quality assurance copies.
Being disappointed at the court’s finding that Fox’s damages were not suitable for a preliminary injunction, Fox has already stated that it intends to appeal this portion of the court’s decision, as well as the court’s separate findings concerning the PrimeTime Anytime service. According to Fox, not only is AutoHop 
"destroying the fundamental underpinnings of the broadcast television ecosystem", but "Dish is marketing and benefiting from an unauthorized [video on demand] service that illegally copies Fox's valuable programming." 
... and the same happens 
to Milly with CSI: Miami
As commented by The Hollywood Reporter, both sides don't agree on much. Neither can see eye-to-eye on how the technology should be defined. While Dish is asserting that AutoHop is really just an improvement on existing recording devices that have been accepted by the industry and judicially blessed as fair use going back to the seminal Supreme Court's 1984 ruling on the Sony Betamax videocassette recorder and continuing through the Second Circuit's 2008 ruling on Cablevision's remote-storage DVR, Fox dismisses Dish's contention that the technology is merely a "souped-up DVR" and disputes that the freedom to time-shift is at stake here.
However, as reported by the Los Angeles Times, CBS CEO Leslie Moonves might consider trading off advertising revenue if feeling adequately compensated by pay TV affiliate operators that are offering ad skipping functionalities, like AutoHop. This may imply that what is really at stake here is leverage: "Broadcasters such as CBS are seeking higher payments from pay-TV distributors such as Dish. The AutoHop gives Dish leverage to try and lower so-called retransmission consent fees." Although negotiations over the AutoHop will likely have to wait until the law weighs in, it is likely that in the meanwhile CBS and others may decide not to sell programming to Dish.

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