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TV Ad-Skipping Battle Shines Light on Copyright Infringement Questions

Television is not what it used to be. Once upon a time, viewers not only had to perform a small fête of acrobatics with antennas to get decent pictures, but also actually had to get up and turn dials to change channels. With the advent of cable and satellite television, the remote control and the ability to record programming on a digital video recorder, or DVR, it appears those days are over.

With all these changes, the thought of watching popular television programs without having to sit through commercials seems the next logical step – a step Dish Network is attempting to take although major networks are doing their best to thwart the company’s efforts.

Last spring Dish Network began offering a new device, the Hopper DVR, designed to record primetime lineups from the major networks. The device runs a program called AutoHop that allows subscribers to watch the broadcasts free of commercials.

The parent companies of CBS, Fox and NBC are not as excited about the technology as Dish Network and its customers. In fact, these parent companies filed suit against Dish Network, stating within their complaint that Dish Networks’ device makes “unauthorized copy” of premiere broadcasts and provides customers with a “bootleg broadcast” service.

Ultimately, the companies claim the device violates copyright law.

Case Details

The networks argue that the AutoHop service modifies their content “in a manner that is unauthorized and illegal,” according to a Bloomberg Businessweek interview of CBS spokeswoman Shannon Jacobs. They assert that the future of ad-supported television is at stake, putting not only the major networks, “but also the hundreds of local stations around the country,” at risk of serious financial damage, according to a statement released by Fox.

A spokesman for NBC added that Dish Network “does not have the authority to tamper with the ads from broadcast replays on a wholesale basis for its own economic and commercial advantage.”

Dish Network counters that although viewers can skip the advertisements, the ads are still preserved within the recording. As a result, it contends that the network content isn’t really modified.

An Interesting Twist: Suits Filed in Both New York and California

If the question of copyright infringement alone doesn’t provide enough interest, the case took another exciting turn. On May 24, 2012, Dish Network filed a lawsuit against the major networks in a New York federal court, on the very same day CBS, NBC and FOX filed suit against Dish Network in federal court in California.

The result: a court venue dispute before the issue of copyright infringement can even be decided. Why the rush to stake out the venue? Dish Network may have been motivated by precedent.

In a previous case, a New York U.S. District Court already found in favor of cable companies battling networks for the right to offer remote DVR services. The networks argued that DVR systems made unauthorized recordings of their programs. The District Court initially ruled in their favor, but the ruling was overturned by the U.S. Court of Appeals for the 2nd Circuit.

As a result, the law in New York states that home tapping with a DVR system and watching a program at a later date, a process the court referred to as “time-shifting,” is not a copyright violation. Dish Network likely hoped the earlier holding provided precedent to New York courts, making them more likely to find in Dish Network’s favor on this similar issue.

Dish Network is suing in New York for a declaratory judgment from the court stating that the AutoHop feature does not infringe on copyrights, while the major networks sued in California claiming copyright infringement.

The judge presiding over the New York case ruled that Fox, NBC and CBS can continue their copyright infringement cases in California. However, since ABC did not file in California, but instead filed a counterclaim in New York, its case will continue there.

A separate issue on contract claims, however, will continue to be heard in New York for all the parties.

The holding was supported by facts that led the judge to believe Dish’s filing was completed in anticipation of future action by the major networks. This, in combination with the fact that three of the parties alleging injury chose California as the venue for their claims, led New York’s U.S. District Judge Laura Taylor Swain to find Dish Network’s filing in New York improper.

Although this case is gaining major media attention, it also reiterates the impact of copyright infringement issues on all parties. In this modern age, protecting creative work can be more challenging than ever before. As a result, any allegations of copyright infringement need to be taken seriously and should be discussed with an experienced copyright law attorney to better solidify and enforce copyright protections.