Fox’s case against ad-skipping dismissed
The US Court of Appeals for the Ninth Circuit has dismissed Fox’s appeal against satellite television provider Dish Network, in a case related to a technology that allows subscribers to skip advertisements in TV recordings.
On July 24, the court upheld the prior decision to throw out Fox’s request for a preliminary injunction after it sued for copyright infringement and breach of contract.
It found that the US District Court for the Central District of California did not “abuse its discretion in holding that the broadcaster failed to demonstrate the likelihood of success on its copyright infringement and breach of contract claims,” adding that Dish showed it was likely to succeed on its fair use defence.
Dish is the third-largest pay television service provider in the US. It retransmits Fox’s broadcast signal under a contract signed in 2002.
An amendment to its contract with Fox allows Dish subscribers to record programmes from Fox’s primetime schedule, such as Glee, The Simpsons and Family Guy, to a set top box, though requires that fast forward functionality is disabled during ad breaks.
In May 2012 Dish introduced the AutoHop feature, which automatically “jumps” over, but does not remove, commercial breaks in the recording.
Fox filed suit at the district court later that month, alleging the service infringes copyright.
While the court found that Dish “likely” breached its contract and directly infringed Fox’s reproduction rights by making copies of broadcasts in order to test the advertising breaks were correctly marked, it said that Fox failed to establish that these quality control copies are damaging to the company.
It also held that skipping commercial breaks does not implicate Fox’s copyright interest, as it owns the rights to the TV programmes, not the advertisements.
“If recording an entire copyrighted programme is a fair use, the fact that viewers do not watch the ads not copyrighted by Fox cannot transform the recording into a copyright violation,” Judge Thomas wrote in the Ninth Circuit court opinion.
Joseph Nabor, partner at Fitch Even Tabin & Flannery LLP in Chicago, said: “Fox might have been able to work out a deal with its advertisers that it has the right to enforce copyrights – not necessarily the full right – in the advertisements that it broadcasts.”
Fox’s argument that Dish is infringing copyright fails as the consumer, not the provider, is making the copy that they demand, he said, referencing the Betamax case battle over home video recording.
“I’m curious to see if this is going to have any application on the Aereokiller case,” he added, which is due to be fought in the same court. Aereokiller is an online service that allows customers to stream TV shows on demand. Fox, along with several other major broadcasters, successfully sued it for copyright infringement earlier this year, and the ruling is currently on appeal.
“Right now, everybody’s briefing that case and it’s interesting because all the lawyers are the same in these cases,” he added.
