Peter Kafka

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Dish and Its Ad-Skipping Hopper Win Another Legal Fight Against the TV Networks

The broadcast networks have lost another legal battle against new technology: A federal appeals court has denied a request by 21st Century Fox to stop Dish Network from selling its ad-skipping AutoHop feature.

The Ninth Circuit Court of Appeals held up a ruling from last year that said Dish could keep selling the technology, which lets users automatically fast-forward through ads on recordings of prime-time network broadcasts.

You can read the ruling, embedded at the bottom of this post. It cites multiple precedents that will be familiar to people who follow tech-versus-TV fights, including the Sony/Betamax case and the Cablevision “cloud DVR” case, and concludes that consumers have the right to record shows, and to fast-forward through the ads.

The ruling appears to leave open the door, at least a crack, for a Fox argument that the AutoHop feature violates terms of a distribution contract between Fox and Dish.

But we’ll have to see what Fox, which took on the case with the backing of the other broadcast networks, wants to do. Here’s their response, for now: “We are disappointed in the court’s ruling, even though the bar to secure a preliminary injunction is very high. This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly.”

And here’s Dish’s victory dance: “DISH is pleased that the Ninth Circuit Court of Appeals has affirmed the district court’s 2012 order denying Fox’s preliminary injunction motion. In so doing, the courts continue to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop — key features of the Hopper Whole-Home HD DVR.

This decision is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control.”

The ruling comes in the same month that CBS and the other broadcasters lost a motion to re-hear a federal court ruling that favored Aereo, the startup that distributes broadcaster networks’ programs over the Web without paying a license fee for the shows.

Here’s Dish CEO Charlie Ergen, at our D: Dive Into Media conference in February, explaining the thinking behind the ad-skipping feature:

dish hopper case

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