You know how digital video recorders (“DVRs”) help users fast-forward through the onslaught of ads that come with today’s “small screen” entertainment. A newer device at the center of a copyright battle—the DISH Network’s THE HOPPER—is a bit different than your typical DVR. It lets subscribers essentially block out or “hop through” the commercial breaks in the major TV networks’ prime time shows, as opposed to requiring the subscriber to fast forward through them. We understand some DISH Network employee in Wyoming monitors the network primetime broadcasts and marks the starting and stopping points for the commercial breaks, which allows almost completely uninterrupted viewing of primetime network shows. (If you’ve been too busy skipping commercials to see DISH’s ads, you can check out the THE HOPPER ad campaign featuring a “charming,” Boston-accented family that always seems to be bickering about their TV viewing priorities.)
While studies have shown that typical DVRs with user initiated, manual fast-forward technology actually increase commercial viewing, the HOPPER technology completely forecloses the possibility of incidental commercial viewing, which the major TV networks, of course, do not like one bit. Fox, CBS, and NBC each filed separate copyright infringement lawsuits in federal court against DISH to attempt to prohibit DISH from offering its THE HOPPER service to subscribers. Fox, who did not prevail at the trial level, pursued an appeal to the Ninth Circuit. On appeal, Fox asserted that DISH was violating Fox’s copyrights as well as breaching its rebroadcast contract for Fox’s most popular TV shows (such as The Simpsons, Bones, and Family Guy, to name a few), by recording and rebroadcasting the episodes without permission. Alternatively, Fox claimed that DISH’s subscribers were violating its copyrights by using THE HOPPER service to record shows and replay them later. Of course, Fox didn’t sue each and every DISH subscriber but instead asked the Court to hold DISH accountable for its subscriber’s actions.
Thankfully for DISH Network subscribers and DVR users everywhere, in its original July 2013 opinion, the Ninth Circuit found that neither DISH nor its subscribers were violating Fox’s copyrights. Fox’s attempt to have the matter reheard by the Court were recently rebuffed by the Court. (You could imagine the implications if the Court found otherwise, think Napster a la 2001!) In upholding the trial court’s decision, the Ninth Circuit found that DISH was not infringing because it’s subscribers, and not DISH, were copying the shows by initiating the recording (by pressing the “*” button). As for DISH’s subscribers, the Court determined that they were likely infringing on Fox’s copyrights by making unauthorized copies of Fox’s TV shows, but that such infringement was a “fair use” that neither the subscribers nor DISH could be held liable for. In making the ruling, the Court relied on its prior opinion in Sony Corp. of Am. v. Universal City Studios, Inc., which focused on whether Sony’s now long-defunct Betamax technology infringed on Universal’s copyrights. The Court’s Fox/DISH ruling reaffirmed that old case law and reassured delayed TV viewers everywhere: whether you are recording an episode of Glee with THE HOPPER—or an episode of the A-Team on your Betamax VCR—you can do so with a clear conscious. (Well, at least when it comes to your copyright infringement conscious, anyway.) As our courts struggle to interpret and apply copyright law to ever-evolving technologies, we’ll be watching for the latest news.