Court Says Broadcasters Can’t Use Copyright To Block Commercial Skipping

This morning there was a huge victory for common sense in the Ninth Circuit appeals court ruling in the Fox v Dish case over Dish’s AutoHopper technology. As you may recall, pretty much all the major broadcasters sued Dish a year ago, claiming that its AutoHopper technology with the PrimeTime Anytime feature — which would record the entire primetime lineup, and allow Dish customers to watch everything (starting the next day) while automatically skipping the commercials — was infringement (and breach of contract). As we noted at the time, the broadcasters’ arguments made very little sense. The basis of the argument was that skipping commercials is a form of copyright infringement. We couldn’t see how skipping commercials violated the copyright in any way at all, and while Fox pretended it won the initial ruling at the district court level, the reality was that Dish won big.

Fox immediately appealed, and Dish has won big yet again with this latest ruling, which is a huge victory for common sense. The court makes a number of important findings, nearly all of them good and sensible. To be specific, the nature of this ruling was over whether or not the broadcasters could get an injunction to block Dish from offering this technology while the case was ongoing, but the court rejected it, saying that the broadcasters did not demonstrate a likelihood of success. This means the full trial can still go forward, but the technology can still be offered during that trial. However, the fact that both the district court and the appeals court have clearly stated that they don’t see a likelihood of the broadcasters succeeding shows that the broadcasters are likely to be wasting a lot of time and money only to lose.

The key point in this case: skipping commercials is not copyright infringement. For years, Hollywood has tried to claim that skipping commercials is a form of copyright infringement. All the way back in 2002, a TV exec claimed that skipping commercials was a theft (even merely going to the bathroom during a commercial). A couple years later they even tried to get Congress to pass a law explicitly banning commercial skipping (sponsored by Orrin Hatch, of course). Without that, they’ve just been pretending that commercial skipping must be illegal. In court, the TV networks have argued that anything that hurts their business model must be illegal — via

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