Dish’s Ad-Skipping Feature Survives ABC’s Shutdown Bid

Dish Network Corp.’s ad-skipping recording feature survived a court bid by Walt Disney Co.’s ABC television to shut it down almost a year after a Los Angeles judge rejected a similar effort by other broadcasters.

ABC’s request for a preliminary injunction against the ad-skipping service was denied yesterday by U.S. District Judge Laura Taylor Swain, who placed her opinion under seal because it contained confidential business information, according to a filing in federal court in Manhattan.

The dispute over Dish’s ad-skipping technology is playing out in U.S. courts on both coasts. Dish sued ABC, CBS Corp. and Comcast Corp.’s NBC in New York in May 2012, seeking a judgment that its AutoHop feature, which allows viewers to skip ads only in broadcast shows, doesn’t violate network copyrights or contracts.

The same day, Fox Broadcasting Co., CBS and NBC sued Dish in Los Angeles for copyright infringement and breach of contract. In November, U.S. District Judge Dolly Gee in Los Angeles rejected Fox’s bid for an injunction similar to the one sought in New York. An appeals court upheld Gee’s ruling in July.

“The decision is yet another 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,” Stanton Dodge, Dish’s general counsel, said in a statement. “This is the third federal court decision that has sided with consumers’ right to enjoy television as they want, when they want, including the right to skip commercials.”

Preliminary Decision

Karen Hobson, an ABC spokeswoman, said in e-mail that yesterday’s ruling was merely a preliminary decision.

“We continue to firmly believe that Dish’s AutoHop and PrimeTime Anytime services breach our retransmission consent agreement with Dish, infringe upon ABC’s copyrights, and unfairly compete with the authorized on-demand and commercial-free options currently offered by ABC and its licensees,” Hobson said.

Dish, based in Englewood, Colorado, introduced its digital-video recorder, the Hopper, in March 2012. Its PrimeTime Anytime feature can record all the major networks’ primetime shows and store them for eight days after their initial broadcast. AutoHop, introduced in May 2012, allows viewers, with the touch of a button, to skip all ads automatically, without having to manually fast-forward through them.

Video Recorders

Dish’s argument relied in part on a 1984 U.S. Supreme Court ruling that consumers have the right to make copies of TV shows with video recorders for later viewing. It also relied on a 2008 decision by the U.S. Court of Appeals in New York that a company isn’t liable for infringement if its customers initiate the recording process.

“The Hopper is nothing but a souped-up DVR,” Dish said in its written arguments opposing an injunction. “Consumers are making the copies, not Dish.”

The New York case is In re AutoHop Litigation, 12-04155, U.S. District Court, Southern District of New York (Manhattan).

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