Okay, we had expected the TV networks to possibly take legal action against DISH Networks for its new Auto Hopper technology, which allows DISH subscribers who use the Hopper feature (which records all prime time shows from the four major networks) to autoskip commercials, if they watch shows in the days after they originally air. It wasn’t a surprise that the TV networks didn’t like this at all, but could they really make a legal argument that skipping commercials was against the law? We’ve all heard the story of former Turner Broadcasting exec Jamie Kellner claiming that not watching commercials was “theft,” but do the networks actually think there’s a legal basis for such claims?
It appears they do. Though, the legal arguments are insane.
As you may have heard by now, Fox, CBS and NBC Universal have all sued DISH in California. At about the same time, DISH itself filed for declaratory judgment in New York against those three, and ABC, who hasn’t yet filed suit, but perhaps will shortly. I would imagine that all of the cases will be consolidated in one of the courts.
What’s scary, however, is that the TV networks appear to be using this lawsuit to claim that skipping commercials is copyright infringement.
I haven’t yet seen the NBC filing, but the Fox and CBS filings both make this same basic argument. Update: NBC filing is added below, and is nearly identical to the CBS filing, down to the very same lawyers. Fox first argues that merely recording the entire prime time lineup is making “bootleg” copies of the videos. That’s a rather stunning claim, and a direct challenge to the Supreme Court’s ruling in the Betamax case, which made it clear that time-shifting is legal. The networks are claiming that this is not the same thing, because the “copies” aren’t being made by the user, but by DISH itself for use by the user. Beyond being a meaningless distinction, it’s also not true. As the Cablevision case concerning a “remote DVR” offered by the service provider showed, if the actions are at the request of the consumer, then it’s the consumer making the call. With the DISH offering, the subscriber is still the one pushing the button and asking the DVR to record the shows. Is it really that different that it takes one button rather than punching in a few shows? That would be extraordinary — but these filings are full of such extraordinary claims.
Where the filings go really off the wall is in basically saying that skipping commercials is infringement. They do this in the sections on “inducement,” wherein they suggest that, even if DISH doesn’t directly infringe, it is is inducing infringement by offering the auto commercial skip feature to users. From the CBS filing:
Users of the Hopper’s PrimeTime AnyTime feature who record
Plaintiff’s prime-time shows and use the Hopper’s Auto Hop feature to
automatically skip commercials otherwise contained in those recordings infringe
Plaintiffs’ exclusive reproduction rights under section 106 of the Copyright Act,
But this makes no sense. Recording the show for later viewing is already deemed legal. So the only difference here is the intent of the user to watch later to skip commercials. Thus, CBS seems to be saying that merely wanting to avoid commercials is, itself, direct copyright infringement. And, given that Auto Hop doesn’t work until the day after the shows air, does that mean that it’s legal to record the shows if you intend to watch them the same day… but the second your intention is to watch them later, it’s copyright infringement? That makes no sense and has absolutely no basis in the law. And, uh, what happens if you record it with the intent to watch the next day and skip commercials… but then watch it the same day with the commercials? The allegation above says merely recording the shows with intent to skip commercials is infringement, even if you don’t actually skip the commercials! That makes no sense.
Fox’s filing makes similar claims, insisting that DISH is inducing infringement because it “took active steps to encourage its subscribers to use Primetime Anytime to infringe FOX’s copyrights.” But that’s flat out malarkey. It’s legal for users to time shift shows. That’s established. Yet, these filings seem to want to totally ignore that, and then assume that a user watching a DVR’d s how is automatically infringing on copyright because they might skip commercials.
The argument makes absolutely no sense at all. Effectively, the networks are trying to claim inducement to infringe… but do not (and, indeed, can not) show what or who is actually infringing. Time shifting is legal. Not watching commercials is legal. So, er, where’s the copyright infringement, unless you completely throw out the Betamax ruling?
The filings also go down the path of explaining how this disrupts their business model. They honestly seem to be arguing for what some people have amusingly referred to as “felony interference with a business model.” They list out all the different ways they get companies and users to pay multiple times for the same content, and use that to suggest this must be illegal, even though DISH has a retransmission license and all the individual parts are legal. I honestly don’t understand this argument — they’re just claiming that because they don’t like how end users engage with otherwise legal content, it must be illegal. Fox even uses this to claim that DISH’s offering is not “enhancing consumer choice.” Apparently, in the minds of TV network lawyers, what counts as “consumer choice” is limited to what the TV networks want to count as consumer choice… and any other choices are no choices at all. Or something.
There are a few slight differences in the lawsuits. For example, Fox brings up the fact that DISH also offers the Slingbox to allow users to not just time-shift but also place shift, though fails to explain why that’s an issue at all. Fox also includes a breach of contract claim, which also may be difficult to support if all of the other actions prove to be legal.
DISH’s declaratory filing gives you a pretty clear sense of that company’s argument, pointing out that this is a nice feature that consumers want, that this kind of technology is already widely in use, and that it’s not clear how any of this is infringement.
Auto Hop is a more efficient way of achieving what consumers already do with
standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It
permits viewers to automatically skip ahead in a recording, at the touch of a button, completely
bypassing a typical 30-second television commercial. The remote controls that come with DVRs
supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip
feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip
button multiple times, a viewer can elect to bypass the full complement of commercials between
show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just
an extension of this 30-second skip function. It avoids the common frustration that occurs when
viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward
into the television programming content that they really want to watch.
DISH also points out that skipping commercials is not illegal:
DISH’s Auto Hop feature promotes consumer autonomy. Viewers have skipped
commercials for decades. Viewers commonly use the commercial break as a time to get up and
momentarily leave the room. Ever since the advent of the remote control, viewers have changed
channels or muted the sound during commercial breaks. And, since the advent of the VCR and
DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply
making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted
choice to skip a commercial.
I can’t see how the networks’ argument can stand very much legal scrutiny at all — but stranger things have happened when copyright cases hit the court. Still, the arguments here are so bizarre, and so unsupportable, you have to believe a judge will reject them quickly.