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Copyright Infringement Preliminary Injunction Denied In Dish Lawsuit

By Eric Misterovich

A U.S. District Judge denied ABC television (“ABC”) the ability to prevent satellite-TV provider, Dish Network Corp. (“Dish”), from continuing to provide its commercial-skipping recording feature as a service through a request for a copyright infringement preliminary injunction. The controversial feature, dubbed AutoHop, allows consumers to skip ads during broadcast shows. Additionally, Dish consumers can also record a block of prime-time television and watch it later – all while skipping through the ads via AutoHop – thanks to another one of Dish’s features, PrimeTime Anytime. ABC contends that this feature constitutes copyright infringement.

ABC isn’t the first network to try and block Dish subscribers from using the ad-skipping feature through a copyright infringement lawsuit; CBS, NBC Universal Media LLC, and Fox also sought to have the service vetoed, claiming it negatively affects their revenue. In fact, just last year Dish sued those networks trying to end their contracts with Dish, claiming that the feature does not violate network copyrights or contracts.

ABC, along with other networks, contradict Dish’s stance, claiming that the feature allows consumers to make unauthorized copies of their programs without the proper legal consent. Specifically, they argue that it violates the terms of their retransmission consent agreement; a provision outlined in the 1992 U.S. Cable Television Protection and Competition Act. That provision requires cable operators and other multi-channel program distributors to obtain permission from broadcasters before retransmitting their programming. Regarding this, Dish claims it pays fees to networks to retransmit the network’s broadcasts. Further defending its service, Dish also relied in part on a 1984 U.S. Supreme Court ruling that held consumers have the right to make copies of TV shows for later viewing, and also on a 2008 U.S. Court of Appeals decision holding that a company isn’t liable for infringement if its consumers initiate the recording process.

Thus, while Dish is fighting for consumer-friendly, ad-free TV, the networks are fighting to keep the driving force of their businesses intact. And so far, courts have sided with Dish. Last November a California federal judge shed some light on one reason why the feature is okay with the courts when Fox Broadcasting’s motion to block the service was denied. The judge in that ruling determined that while the ad-skipping feature does essentially pirate copies of programs in order for Dish’s PrimeTime Anytime service to function, the Fox-Dish contract outlines a forbiddance of ad-skipping features for video-on-demand technology only, not to network prime-time programming.

Meanwhile, the court details from ABC’s recent denial are currently under seal while both parties are given time to remove proprietary and confidential information from the court documents.

While this legal battle is likely far from over, Dish’s executive vice president, R. Stanton Dodge explained that the recent ABC ruling is not only a victory for Dish, but also for TV viewers. “This is the third federal court decision that has sided with Dish on consumers’ right to enjoy television as they want, when they want, including the right to skip commercials, if they so choose,” he said.

If you are faced with a copyright infringement lawsuit, contact our expert copyright infringement attorneys today at 855-473-8474.

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