Fox Asks Appeals Court to Halt Dish’s Ad-Skipping Technology15 Dec, 2012 By: Erik Gruenwedel
Fox Broadcasting Co., 20th Century Fox Film Corp. and Fox Television Holdings have filed a motion with U.S. Court of Appeals for the Ninth District asking it to reverse a lower court’s ruling denying a permanent injunction against Dish Network’s ad-skipping technology.
Dubbed “AutoHop,” the software enables Dish’s high-definition subscribers to automatically skip TV commercials on recorded primetime programming on its Hopper digital video recorder.
Fox and other media companies have separately filed litigation against Dish contending AutoHop violated retransmission agreements, in addition to copyrighted TV programming, among other claims.
Fox, in its Dec. 13 motion, said District Court Judge Dolly Gee erred when she ruled AutoHop was akin to a digital video recorder and not a video-on-demand transmission, and thereby did not violate terms of the 2010 retransmission consent agreement between Fox and Dish.
Gee Nov. 7 ruled that the user — not Dish — must initiate the AutoHop feature to automatically skip commercials on recorded programming. By doing so, Gee wrote that “Fox has not established … the merits of its claim that [PrimeTime AnyTime, or PTAT] directly infringes on its exclusive right to reproduction.”
Gee also ruled that Fox’s claim that Dish’s copies of recorded programming stored on subscribers’ Whole-Home Hopper DVRs did not constitute copyright infringement and breach the parties’ contract.
“The district court erred in finding Dish not liable for direct copyright infringement, even though Dish set up and runs the [Primetime Anytime] service, picks the networks included in the service, hand-picks each show to be recorded regardless of whether the subscriber has any interest in watching it, and determines how long each recording is available for viewing before deleting it,” Fox said in its motion.
The network added that Gee ignored testimony that Dish characterized the Hopper DVR with AutoHop as a hybrid VOD service, among other errors.
“The court did not even address Fox's separate claim that [Primetime Anytime] breaches Dish's additional promise not to take any steps ‘whatsoever’ to circumvent the contract,” Fox said in its motion. “This reasoning was legally and logically erroneous.”