August 23, 2012 3:48pm PT by Eriq Gardner
Fox Asks for Injunction to Shut Down Dish Ad-Skipper
Fox Broadcasting has asked a California federal judge for an injunction against Dish over its advertising-skipping DVR services known as "AutoHop" and "PrimeTime Anytime."
The request follows Dish's own move in New York court last week to amend the way it is presenting its service to a judge. Dish no longer says the Hopper happens "automatically," but rather enables a "consumer's option" to store recordings of primetime TV programming for up to eight days.
But that's not good enough for Fox, which previously succeeded in convincing a court to allow its own lawsuit against Dish to proceed in California.
Dish last month introduced a software update that Fox says represents "cosmetic changes..in an attempt to camouflage the copyright infringement that Dish commits every night with its service."
The broadcaster says the updates, which tweaked the DVR technology 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, "effectively concedes that PrimeTime Anytime as originally distributed and operated was infringing."
But Fox adds, "It does not solve the problem: PrimeTime Anytime still breaches the parties' contracts and infringes Fox's copyrights on a massive scale, night after night."
Now, Fox wants a court order that would shut down the service.
"The need for a preliminary injunction could not be greater," says the motion. "PrimeTime Anytime and AutoHop cut the legs out from under the advertiser-supported broadcast television business model, devalue Fox's commercial air time in the eyes of advertisers, usurp Fox's control over the timing and manner in which Fox has chosen to exploit its copyright works, and threaten to disrupt Fox's ability to license its program and recoup its massive investment."
The motion goes on to quote Dish chairman Charles Ergen as admitting the new service is "not good" for broadcasters and puts the entire TV "ecosystem" in jeopardy.
Fox says it is likely to succeed in its lawsuit because of the language of its 2002 retransmission agreement with the satellite distributor as well as 2010 amendments that added language concerning Video-On-Demand services. The contract purportedly allows Dish to offer VOD to subscribers but it is "expressly conditioned on Dish disabling any fast-forwarding of commercials during VOD playback."
Fox says that Dish's service not only violates contractual rights, but also its copyright authority. The broadcaster says the alleged infringements are both direct and contributory, citing appellate court decisions in Grokster and Napster, as well as the making the case there's no "fair use" involved.
Dish has maintained that it is doing nothing wrong.
According to its own legal papers, Dish says, "Ultimately this case is about freedom of consumer choice, individual families' choice to elect, if they want, to time-shift their television viewing and watch recorded television without commercials."
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