Dish’s battles over the commercial-skipping Auto Hop technology built into its Hopper whole-home DVR are probably not over, but at least they’ve reached a pause thanks to the 9th Circuit Court of Appeals, which has ruled that the device cannot be pulled from the market. And while the lawsuits will be allowed to proceed, no injunctions will be honored.
After all, Fox — who claimed that the Hopper violated copyright — doesn’t even own most of the commercials that it airs, as the court reminded them. Via Ars Technica:
Commercial-skipping does not implicate Fox’s copyright interest because Fox owns the copyrights to the television programs, not to the ads aired in the commercial breaks. If recording an entire copyrighted program is a fair use, the fact that viewers do not watch the ads not copyrighted by Fox cannot transform the recording into a copyright violation. Indeed, a recording made with PrimeTime Anytime still includes commercials; AutoHop simply skips those recorded commercials unless a viewer manually rewinds or fast-forwards into a commercial break. Thus, any analysis of the market harm should exclude consideration of AutoHop because ad-skipping does not implicate Fox’s copyright interests.
Instead of re-fighting the Betamax war, the networks need to remember that they hold the cards here in terms of content. When contracts with Dish come up for renewel, it shouldn’t be difficult to include a clause that Auto Hop-like features may not be implemented on their content. Problem solved. At least for the broadcasters. I seriously doubt that will go over well with Hopper owners who have gotten used to not pressing the skip button four times to zip through commercial breaks.
Meanwhile, Apple is supposedly trying to implement a similar commercial-skipping feature, but one that charges the customer a fee for the privilege — a fee that will reportedly go back to the networks for lost ad revenue. Perhaps Dish could do something similar to get the broadcasters off its back. How much would it be worth to you every month to automatically skip commercials on prime time broadcast shows?
Via: [Ars Technica]