A huge legal battle is brewing between Fox and Dish Network over Dish's "Hopper," which records entire primetime lineups and "instantly" skips TV ads.
In what CNN Money called a "damning court filing," Fox accused Dish in May of peddling a "bootleg broadcast" using technology that would "ultimately destroy the advertising ecosystem."
California federal judge Dolly Gee refused to block the Hopper in November.
She ruled the Hopper's allowed for "time-shifting" in viewers' homes – which allows viewers to watch programs at a later time – and there was no evidence that such technologies decreased the value of networks' copyrights.
Now Fox has brought the case to California's Ninth Circuit Court of Appeals. A group of law professors filed a brief supporting Dish Thursday, claiming Fox is "launching an assault on private-noncommercial time-shifting of television programs."
This assault on "time-shifting" could arguably extend to any program that allows you to watch TV at a later time and possibly fast-forward through commercials.
The law professors also say Fox's suit poses a threat to "fair use," a legal doctrine in the U.S. that allows for the limited use of copyrighted works without having to obtain permission. From their brief:
Fox continues its attack on fair use by seeking to stop Dish’s creation of quality assurance (“QA”) copies of Fox’s programs, which Dish then uses to access unprotectable facts about the programs – the start and stop times of show segments – and to use those facts to ensure that AutoHop, its commercial skipping program, responds appropriately.
Fox says its appeal doesn't challenge all "time-shifting," or programs that allow viewers to simply fast-forward through commercials (a more active process than the instant commercial-skipping provided by the Hopper.) From its opening brief:
This appeal does not challenge VCRs, DVRs, or viewers ability to select and record programs for later viewing ("time-shifting"). Nor does it challenge viewers' ability to fast-forward through commercials when they watch programs they selected and recorded with DVRs. What it does challenge is Dish's wholesale copying of Fox's copyrighted primetime programming in order to offer its subscribers an on-demand library of commercial-free programming, in violation of copyright law and its contractual obligations.
Corporate Counsel's Lisa Shuchman has written that Fox can "hold out some hope as it hops down the appellate road."
"The judge also indicated that some of Dish’s features could be construed as directly infringing Fox’s copyrights," Shuchman wrote. "The determining factor, she said, would be whether Dish exercises control over the copying process."
