8:51am PT by Eriq Gardner
Dish Amends AutoHop Lawsuit, Calls Ad-Skipping 'Consumer's Option'
Dish Network has filed an amended complaint in a New York federal court in hopes of protecting its AutoHop service, which allows subscribers to bypass commercials.
The original lawsuit was filed May 24, following a story in The Hollywood Reporter that prompted Dish, CBS, NBC and Fox to rush to court with separate lawsuits, each meant to win jurisdictional advantage. Attorneys for the broadcasters then attacked what they called Dish's "hastily drafted complaint." A New York judge agreed, ruling that the broadcasters' lawsuits against Dish could proceed in California, while keeping parts of the case, including the overall dispute with ABC and portions against CBS and NBC, in her own court.
Given more than 12 hours to lodge a less-rushed lawsuit, Dish has released Version 2.0 of its complaint with subtle but important differences that indicate how the satellite giant is prepared to defend a service that the broadcasters have described as "a bootleg, commercial-free video-on-demand service." In particular, Dish has added language to describe AutoHop and PrimeTime Anytime services as working at its subscribers' behest.
In the original complaint, Dish used this language to describe a feature that allowed a recording of the entire primetime broadcast schedule for all four major networks:
"The Hopper also has PrimeTime Anytime capability, an exclusive feature that allows viewers, with one click, to record in HD all of the HD primetime TV programming on ABC, CBS, Fox and NBC. The Hopper automatically stores these shows for eight days after they have aired, storing approximately 100 hours of primetime TV shows on the DVR hard drive and making it easy to access episodes from the previous night or the previous week."
And here's the new language in the amended complaint with our emphasis in bold:
"The Hopper also has PrimeTime Anytime capability, an exclusive feature that allows viewers to enable the recording of HD primetime TV programming on ABC, CBS, Fox and NBC. The Hopper will save all of these recordings for up to eight days (at the consumer's option) after they have aired (with the ability for the consumer to store selected recordings for a longer period), storing approximately 100 hours of primetime TV shows on the DVR hard drive, and making it easy to access episodes from the previous night, or the previous week."
One key deletion from what's above is the word "automatically." This appears to be no accident. Since AutoHop's launch, the system has been subtly tweaked so that consumers pick which of the major networks are recorded, the timing of programming deletions and the default state whereby commercials are not skipped unless subscribers choose otherwise.
The changes to the system, and the subsequent modifications to the complaint, likely are designed to give Dish a better chance at having a 2008 2nd Circuit decision concerning Cablevision's own remote-storage DVR stand as precedent. In that ruling, which also served as the basis for a judge's recent decision to reject a preliminary injunction against digital TV distribution company Aereo, the appeals court held, among other things, that the service was acting at the behest of its users.
Dish is moving away from touting AutoHop's default advantages to shifting any legal responsibility to users.
The new amended complaint also has one other big difference in that it specifically mentions the precise carriage agreements with broadcast networks that it believes allow for what it is doing. When Dish's original lawsuit was filed, the broadcasters immediately went on attack because its legal adversary had failed in this regard, leading Judge Laura Taylor Swain to agree that it merely served as a "place-holder" suit.
The omission now has been addressed, with Dish speaking about ABC's 2005 retransmission consent agreement with Dish predecessor EchoStar Satellite, NBCUniversal's 2008 agreement with Dish and CBS' agreement with Dish in January.
Both the ABC and CBS deals are said to have specific provisions governing "unauthorized use." The NBCU deal is somewhat different with no such indicated provision, instead using language relating to "PPV/VOD film and TV content" and "advance product offering/TV FOD" as well as "technical requirements."
Meanwhile, the lawsuits in California are proceeding, and the Fox and NBC lawsuits have recently been assigned to California federal court Judge Dolly Gee. As for CBS' own lawsuit against Dish in California, the satcaster isn't quite done challenging the venue, arguing that CBS is contractually bound to litigate the dispute in Colorado or New York. CBS responds that Dish is "judicially estopped" from making this argument, based upon Swain's ruling a few weeks ago. Dish says CBS "mischaracterizes" a ruling about an injunction into a ruling about venue.
In short, the state of litigation over the Hopper is still a little messy.
The amended complaint is on the next page.
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