Earlier this year, we wrote about the TV networks suing Dish Networks
for its new Autohop feature. Dish created a neat bit of innovation, which automatically recorded all prime time shows for people to watch later, and as long as you watched the day after the shows aired, it would auto-skip the commercials. This is the kind of thing that a user could set up themselves, though it's a bit cumbersome, and too many DVR providers have shied away from automated "commercial skip" features after the TV industry sued ReplayTV over such a feature (despite many VCRs having it already). Ridiculously, the networks, led by Fox, claimed that skipping commercials is a form of copyright infringement. The theory there is... convoluted, at best.
The latest news is that Fox has lost in its attempt to get an injunction, meaning that the service
will live on as the trial continues
. The filing is sealed for now, as apparently there are some trade secret details that need to be redacted. However, both sides are trying to claim victory -- with Fox saying that the order does indicate that the feature is copyright infringement:
"As reported, the court denied Fox's request for a preliminary injunction. But we are gratified the court found the copies DISH makes for its AutoHop service constitute copyright infringement and breach the parties' contract. We are disappointed the court erred in finding that Fox's damages were not suitable for a preliminary injunction. We intend to appeal that portion of the court's decision, as well as the court's separate findings concerning the PrimeTime Anytime service. DISH is marketing and benefitting from an unauthorized VOD service that illegally copies Fox's valuable programming."
That sounds bizarre -- as it suggests that the court still thinks that a service to skip commercials could be infringing -- but we understand that's not the case at all. The ruling is very, very specific and only narrowly found infringement in one small, minor aspect of what was happening. And, the fact that there's no injunction is actually pretty damning for Fox. It shows that the court doesn't believe the "harm," if there is any, is so bad that it can't be dealt with eventually through monetary awards, rather than shutting down the service. It still seems ridiculous that building a useful
service that provides features that people want -- which involves things that individuals can do on their own -- is somehow infringing. Dish's own statement suggests that this ruling is mostly a win -- and the "loss" is minor, since it appears the key aspects of its service were not found to be infringing.
"Today's ruling is a victory for common sense and customer choice. DISH is gratified that the Court has sided with consumer choice and control by rejecting Fox's efforts to deny our customers access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home DVR. The ruling underscores the U.S. Supreme Court's ‘Betamax’ decision, with the court confirming a consumer's right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose."
We'll have more once the redacted ruling is unsealed, but from what we've heard, Fox lost bigtime here. Still, just the fact that this is even being fought out in court should be an indication of the ridiculousness of copyright law today, in which companies aren't allowed to innovate without Hollywood (or the courts) having to first give approval.