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.

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Companies: aereo, dish, fox

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Comments on “Court Says Dish's Hopper Technology Does Not Infringe On Copyrights”

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Anon E. Mous (profile) says:

The TV Networks hate Dish Hopper because they fear what may come if Dish Hoppe is successful with those who buy the units so they don’t have to sit thru crappy ad’s to watch their shows.

The Netwroks fear this will create a boomerang effect that if Dish Hopper is successful with those who buy it, that the success of it wiil move to a set top box for outside of Dish Network that could be used for T.V. service from Telco and Cable providers and diminish their ability in regards to rates they charge for advertising.

The Networks will stop at nothing to make sure they hang on to what has been a very profitable revenue stream for them. Look for them to keep up the fight thru other avenues much like this one on the basis for copyright inringement.

TruthHurts (profile) says:

Auto-Hop cannot infringe on any contract terms...

Why? Because Dish transmits the full show to the equipment.
The Hopper records the entire show (commercials included).

The Hopper then asks the consumer (the owner of the equipment) if they’d like to skip commercials.

If they answer yes, then autohop is activated.
If they answer no, then autohop is deactivated.
The default answer is set to no. So if the user just hits select, then autohop is disabled.

It’s personal choice of the consumer – Dish doesn’t control when or if a user activates the feature.

As anyone knows, even if they turn the feature off, users will hit FF to skip 30 seconds forward, as often as needed to get past the commercials.

Networks aren’t losing anything, except for viewers who will go elsewhere to watch product from someone else that doesn’t piss them off by breaking an automated form of what they do anyway.

antidirt (profile) says:

Another day, another good ruling on copyright.*** Again, the court relies on the distinctions with the Aereo ruling, and how nothing involved with Dish is infringing.

I remember when you were FREAKING OUT about Aereo. This post in particular comes to mind:

You didn’t think there was any way to distinguish Aereo from other cloud services. You said that a decision against Aereo would be terrible for the cloud. And, yet, now you’re praising this court for applying the test from Aereo. I thought the sky… err the cloud… was falling. I thought it was all doom and gloom unless Aereo won. What happened, Mike? Did your sensationalist FUD not pan out again? Funny how that works.

Baron von Robber says:

Re: Re:

Which is funny that you mention Aereo losing their SCOTUS ruling, because the SCOTUS said they seemed for all intents like a cable company (a duck), ergo they must be a cable company (a duck).

So they applied for a license with the Copyright Office like a cable company (a duck). Copyright Office says Aereo is not a cable compnay (you’re not a duck).

Seems like SCOTUS got it wrong. But may they will with this.

Anonymous Coward says:

Re: Re:

Sad little troll.

Why should one reasonably positive ruling on a service that ultimately bears very little resemblance to Aereo automatically validate the Aereo ruling?

I mean sure — hurrah! Dish is allowed to offer some simple, common-sense technology that should have and, were it not for restrictive rightsholders, would have been the norm for 10 years already! The framework that allows bickering, deluded content owners to control innovation sure has saved the day by failing to completely stop all technological progress. Just four or five more decades, and the industry will have caught up to the level of service piracy provided in 2010! I guess the Aereo ruling is A-OK now.

Gwiz (profile) says:

Re: Re:

You didn’t think there was any way to distinguish Aereo from other cloud services

In my opinion, this court attempted to distinguish Dish’s service from Aereo, but it didn’t really accomplish that.

First, it claims that there’s a difference because Dish has a license. I’ve argued that Aereo’s customers also have implied license to over-the-air broadcasts and Aereo was simply assisting them in receiving them. So no go there in my opinion.

Second, it claims that there is a difference because of where the hard drive resides. So we are basically back to the length of the cord argument, which is just plain silly to me.

Third, it claims that because the transmission goes to the customer’s home and from there to internet devices it’s not a public performance. Aereo’s system did the exact same thing only it used OTA broadcast signals which reached the user’s home and Aereo’s facilities simultaneously.

tqk (profile) says:

Re: Re: Re:

Aereo’s system did the exact same thing only it used OTA broadcast signals which reached the user’s home and Aereo’s facilities simultaneously.

I wonder when the USA is going to wise up to the fact that this sort of assholery makes it the laughingstock of the world. Judgements are capricious and most of the result is determined by how ignorant or credulous or manipulable the judge is.

The USA today makes a mockery of damned near everything it touches. Watching the BS that comes out of the US daily stupefies me. Could it be done any worse? I doubt it very much.

TruthHurts (profile) says:

Side note - autohop is better for the environment and our health...

With the number of commercials that the networks insert into their programming, it shouldn’t shock anyone that the batteries in their remotes go dead faster when autohop is disabled or on devices that do not have autohop.

By forcing Dish to disable autohop for their programming, the networks are telling the world that they don’t give a damn about the environmental issues with more batteries being used and thrown out.

Then there’s the repetitive stress syndrome caused by watching recorded television without autohop, in that the viewer has to repeatedly hit FF and occasionally REW so they don’t have to sit through 35 tampon / viagra commercials.

So the networks fighting against autohop are telling us they don’t give a damn about our health either.

DannyB (profile) says:

The pendulum ony swings so far one way

Then it swings back.

People unable to think things out to their natural consequences think they can continue pushing forever with no consequences. Not unlike the government printing money or borrowing whenever it seems necessary to avoid difficult responsible decisions. Copyright maximalists think they can just push and stretch the bounds of copyright to infinity. Sue the whole world for $75 TRILLION.

It’s nice to start seeing some pushback on copyright insanity.

Delusional Dinosaurs to the last. I hope they can find a comfortable tarpit. They seem incapable of adapting to the 21st century.

DB (profile) says:

I see this as circumscribing the Aereo ruling, which is widely viewed as flawed.

After all, “walks like a duck” is a really bad law. Aereo followed the law to the letter, going to absurd lengths to do so. They built thousands of receivers, sitting beside each other duplicating work, to avoid running afoul of an illogical law. Then the USSC rules that their elaborate setup to conform to the law is an indication that they were trying to circumvents the law.

Anonymous Coward says:

case law


Hotaling v. Church of Jesus Christ of Latter-Day Saints
U.S. Court of Appeals Fourth Circuit
June 30, 1997

… a library distributes a published work… when it places an unauthorized copy of the work in its collection, includes the copy in its catalog or index system, and makes the copy available to the public. Because the district court ruled that these actions, by themselves, were insufficient to constitute distribution, we reverse …

In order to establish “distribution” of a copyrighted work, a party must show that an unlawful copy was disseminated “to the public.”…

The Hotalings assert that the Church’s libraries infringed their copyrights by distributing unauthorized copies of their works to the public. The libraries did not record public use of the microfiche. Consequently, the Hotalings concede that the record does not contain any evidence showing specific instances within the limitations period in which the libraries loaned the infringing copies to members of the public. But, they argue that proving the libraries held unauthorized copies in their collections, where they were available to the public, is sufficient to establish distribution within the meaning of the statute.

The Church, on the other hand, argues that holding a work in a library collection that is open to the public constitutes, at most, an offer to distribute the work. In order to establish distribution, the Church argues, the evidence would need to show that a member of the public accepted such an offer.

On this issue, we agree with the Hotalings. When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of Section 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission…

I respectfully dissent. The statute specifically identifies the sorts of “distribution” that violate a copyright, and none of them fit this situation.

The owner of a copyright does not possess an exclusive right to “distribute” the work in any conceivable manner; instead, it has the exclusive right “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending [.]” 17 U.S.C. Section 106(3). The Church did not sell or give an infringing copy to anyone. The Church did not “rent” or “lease” a copy; indeed, the public may use the Church’s libraries and all of their contents for free.

“Lending” is the only remaining candidate. Because they are for research, the libraries do not permit materials to be checked out and used by a member of the public off-premises. Do the libraries nonetheless “lend” a work each time a patron consults it? I think not. The patron might report that he “used” or “looked at” the work, but he would not likely say that it had been “lent” to him

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