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DISH Cheers Ruling on AutoHop, PrimeTime Anytime


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#1 OFFLINE   Stewart Vernon

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Posted 07 November 2012 - 06:13 PM

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DISH Cheers Ruling on AutoHop, PrimeTime Anytime


TV viewers' right to skip commercials upheld

Decision viewed as victory for "common sense and customer choice"

ENGLEWOOD, Colo.--(BUSINESS WIRE)-- Judge Dolly Gee of the United States District Court, Central District of California, today rejected Fox Broadcasting Company's efforts to bar DISH subscribers from use of the PrimeTime AnytimeTM and AutoHopTM features found on the pay-TV provider's HopperTM Whole-Home DVR.

The PrimeTime Anytime feature allows users to easily record the primetime shows on up to each of the four broadcast networks (ABC, CBS, NBC and Fox) and save them for up to eight days. The AutoHop feature allows users to play back certain PrimeTime Anytime recordings commercial-free, starting the day after broadcast.

A copy of the ruling denying Fox's motion for preliminary injunction has not been publicly circulated because the Court is first giving the parties an opportunity to redact confidential trade information. The ruling relates to case CV 12-04529 DMG.

In the decision, Judge Gee found it likely that:

  • Contrary to Fox's assertion, DISH customers using PrimeTime Anytime cannot be liable for copyright infringement;
  • Copies made using the Hopper's PrimeTime Anytime feature do not infringe on Fox's exclusive reproduction rights under federal copyright laws;
  • Neither the AutoHop commercial-skipping feature nor the PrimeTime Anytime feature constitutes unauthorized distribution under federal copyright laws;
  • AutoHop does not violate the Video-On-Demand provisions of the 2010 retransmission consent agreement (RTC) between Fox and DISH;
  • Copies of Fox programs that DISH makes as part of its "quality assurance" of AutoHop's functionality likely violate the RTC between DISH and Fox, and likely violate Fox's exclusive reproduction right under federal copyright laws, but;
  • Fox has not established that is has suffered irreparable harm as a result of DISH's making the quality assurance copies.
The ruling enables the Company to continue to offer its subscribers the Hopper Whole-Home DVR with both the PrimeTime Anytime and AutoHop features. DISH is reviewing today's decision and assessing its impact, especially as it relates to the quality assurance process.

The following statement can be attributed to DISH Executive Vice President and General Counsel, R. Stanton Dodge:
"Today's ruling is a victory for common sense and customer choice.
"DISH is gratified that the Court has sided with consumer choice and control by rejecting Fox's efforts to deny our customers access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home DVR.

"The ruling underscores the U.S. Supreme Court's ‘Betamax' decision, with the court confirming a consumer's right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose.

"We look forward to vigorously defending AutoHop and Primetime Anytime, and the choice and control those features deliver our subscribers."

About DISH
DISH Network Corporation (NASDAQ: DISH), through its subsidiary DISH Network L.L.C., provides approximately 14.042 million satellite TV customers, as of Sept. 30, 2012, with the highest quality programming and technology with the most choices at the best value, including HD Free for Life. Subscribers enjoy the largest high definition line-up with more than 200 national HD channels, the most international channels, and award-winning HD and DVR technology. DISH Network Corporation's subsidiary, Blockbuster L.L.C., delivers family entertainment to millions of customers around the world. DISH Network Corporation is a Fortune 200 company. Visit www.dish.com.

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#2 OFFLINE   dsw2112

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Posted 07 November 2012 - 06:16 PM

I think this is going to make upcoming network contract negotiations interesting :)
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#3 OFFLINE   Stewart Vernon

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Posted 07 November 2012 - 06:18 PM

Agreed. I always thought Dish would win this fight... but in winning the battle we might lose the war.

Expect more disputes with LiLs and the "big four" and possible price increases more than usual going forward.

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#4 OFFLINE   Araxen

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Posted 07 November 2012 - 06:23 PM

It still has to go through appeals doesn't it? Far from over if so.
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#5 OFFLINE   James Long

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Posted 07 November 2012 - 06:48 PM

It has not even begun ... this is just the denial of an injunction stopping DISH from offering the feature during the court battle. If Fox would have won the injunction then DISH would have had to turn off the feature while the case was argued (and Fox would have been liable for damages if they eventually lost).

#6 OFFLINE   tampa8

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Posted 07 November 2012 - 07:30 PM

True dat. (as they say now) But there is a little more to be learned from it Generally when an injunction is not allowed it can mean the lawsuit will have an uphill or any favorable ruling won't have much impact.

This says it all.
"In the decision, Judge Gee found it likely that:"

#7 OFFLINE   James Long

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Posted 07 November 2012 - 08:16 PM

True dat. (as they say now) But there is a little more to be learned from it Generally when an injunction is not allowed it can mean the lawsuit will have an uphill or any favorable ruling won't have much impact.

For comparison, one of the earliest rulings in the now settled Voom case was the denial of an injunction. Voom sought an injunction forcing DISH to put the channels back on the system. This was not granted.

While that case did not complete (it was settled), it should be obvious that the denial of an injunction is not the final decision in the case.

#8 OFFLINE   runner861

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Posted 07 November 2012 - 10:03 PM

Preliminary injunctions (injunctions before the matter has been adjudicated) are rarely granted. There must be irreparable harm possible for the injunction to be granted. Here there is no irreparable harm. Any harm caused by Dish if Dish loses the lawsuit will be fixed with payment of money from the losing party to the prevailing party. It is not like Dish is trying to do something that would cause irreparable damage, like blasting out a mountain to build a freeway.

#9 OFFLINE   ts7

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Posted 08 November 2012 - 04:17 AM

True dat. (as they say now) But there is a little more to be learned from it Generally when an injunction is not allowed it can mean the lawsuit will have an uphill or any favorable ruling won't have much impact.

This says it all.
"In the decision, Judge Gee found it likely that:"


More specifically this statement seems to give the best indication where this whole thing is going...

Copies of Fox programs that DISH makes as part of its "quality assurance" of AutoHop's functionality likely violate the RTC between DISH and Fox, and likely violate Fox's exclusive reproduction right under federal copyright laws


Looks like the judge agrees with Fox but is giving Dish more rope with which to hang itself.

However, Charlie knows time is in his favor and, like the TIVO and VOOM cases, the longer he can draw it out, the better the chances he can get it settled on terms he finds acceptable. Even if this ends up with a judgment against Dish, I'm sure Charlie already has a contingency plan to get around the ruling like in the distant networks case. I would never bet against Charlie!

#10 OFFLINE   bigdog9586

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Posted 08 November 2012 - 11:08 AM

It's a great feature BUT will come back to bite them/us as there is no law that says the networks HAVE to provide Dish their signal as lots found out a couple months back when networks were cut off. I say ditch auto hop and quit POing off the networks

#11 OFFLINE   RasputinAXP

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Posted 08 November 2012 - 03:26 PM

poing off?

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#12 OFFLINE   James Long

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Posted 08 November 2012 - 05:50 PM

It's a great feature BUT will come back to bite them/us as there is no law that says the networks HAVE to provide Dish their signal as lots found out a couple months back when networks were cut off.

Most affiliates will grumble but still want viewers ... which is why the conflict from a couple of months ago was settled and the channels came back ... with Autohop.

#13 OFFLINE   Stuart Sweet

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Posted 08 November 2012 - 06:01 PM

I think yes, the networks will want the viewers, and Fox especially, which has invested heavily in product placement, will be ok whether or not customers see the ads. Also worth saying that many of these retrans agreements will be with the affiliates, not with the networks and Auto Hop is only on prime time (at least for now.) That said, I think there will be many content providers who will dig in and add a "no auto hop" clause to the retrans agreements for as long as they can.
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#14 OFFLINE   SayWhat?

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Posted 08 November 2012 - 06:17 PM

Options appear to be:

1. Status Quo- Locals with AH
2. Locals without AH
3. No Locals
4. Locals without AH at higher rates

# 4 might sound good in theory to the providers, but would probably result in less 'paying' viewers.

#2 and #3 ain't gonna happen for various reasons.
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#15 OFFLINE   James Long

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Posted 09 November 2012 - 02:23 AM

4. Locals without AH at higher rates

Intended to be "Locals with AH at higher rates"?

I would say that stations in general would want both the removal of AutoHop and higher rates. A few years ago it seemed all most stations wanted was carriage ... with some stations going for the cash. In recent years the push for cash and other consideration has grown.

If broadcasters had their way one could skip any part of the hour EXCEPT the commercials. That seems to be the norm for day care closings and other life critical weather bulletins .

I believe DISH will treat AutoHop as a non negotiable part of their service. They will not be turning it off for specific stations. The gamble is that stations will refuse carriage ... but over that particular issue I believe DISH has public opinion on their side.

#16 OFFLINE   kenglish

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Posted 10 November 2012 - 10:58 AM

I suspect that the day will come, when there are no "commercials" at all. Everything will be done via product-placement, and those darned "snipe" ads that jump up over the bottom half of the picture during the show. I'm seeing lots and lots of those right now on the SLC stations.

I wonder how DISH would handle the local stations all randomly delaying the start and stop times of commercial breaks, on a market-by-market basis? If every affiliate in every market changed their break times constantly, that could wreak havoc on the DishHopper thing. They'd need to have a thousand people logging breaks every night, on a thousand locals.

#17 OFFLINE   James Long

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Posted 10 November 2012 - 11:09 AM

I wonder how DISH would handle the local stations all randomly delaying the start and stop times of commercial breaks, on a market-by-market basis? If every affiliate in every market changed their break times constantly, that could wreak havoc on the DishHopper thing. They'd need to have a thousand people logging breaks every night, on a thousand locals.

If the number of DISH subscribers was enough to make that move worthwhile for a station they might consider it. The station would have to get the program from an early feed or stretch the first break out to have padding for later break movement. (There is also a patent application that suggests moving breaks would not defeat DISH's system.)

Anything the station or network would attempt would have to be done in a way that does not harm their regular viewers. It would be stupid for a station to hurt viewers who do not have DISH or the Hopper just out of spite for DISH. Then again, some stations have stupid management/owners.

Personally, I don't see the hassle as worth it ... and if a station actually went to the trouble to alter break times it would be a compliment to DISH that their system was valuable enough to consumers that the station would bother trying to defeat it.

#18 OFFLINE   jsk

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Posted 10 November 2012 - 11:15 AM

My prediction: The station owners will require that AH be disabled in their retrans agreements and they might go farther and eventually, they will require that the commercials be shown like they do online.
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#19 OFFLINE   rocat1997

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Posted 11 November 2012 - 01:03 PM

I don't see the difference between the auto hop and the 30 second skip ahead that I use religiously. I never ever watch something live. I skip all commercials and mostly watch commercial free channels. I would feel different if it was 2 minutes of commercials every 15 -20 minutes. Now they show commercials every few minutes, especially as the end of the program closes in. They cut up the program drastically to put in these commercials. Everyone made a fuss over AMC, and when it returned, I was reminded of the constant commercials they have, but still wanted a ton of cash.

#20 OFFLINE   scooper

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Posted 11 November 2012 - 02:27 PM

Like I said before - 10 minutes per hour / 5 minutes per 30 minutes programming - nobody except the die hards would have said anything about the commercials. Now - we're seeing almost double that rate on ALL channels (i.e. not just broadcasters) and they are doing everything they can to add even more - if autohopper / commercial skipping will give me back that 20 minutes / hour , without having to to remember to keeping hitting skip - give it to me. If it was actually 10 minutes per hour - I doubt there would be a clamor for commercial skip from the viewers.
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