TV viewers have no fear, using DISH’s recording of live TV in order to skip over commercials does not constitute copyright infringement.
The 9th U.S. Circuit Court of Appeals left the remote control in the hands of consumers and gave DISH a nice victory over Fox Broadcasting Co. The panel upheld a trial court’s refusal to give Fox an injunction against the pay TV provider’s products that skip over commercials. Fox failed to show it was likely to win copyright infringement and breach of contract claims against DISH for its commercial-skipping products.
“If recording an entire copyrighted program 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,” said Judge Sidney Thomas. AutoHop simply skips those recorded commercials unless a viewer manually rewinds or fast-forwards into a commercial break.
DISH Network’s Hopper, which “hops” over commercials, and its companion known as “Joey,” faced claims by Fox that the product is “contractually out of bounds” and infringe copyrights.
The Fox contract for its programs, such as Glee, Bones and The Simpsons, forbids DISH from distributing programs on time-delayed, video-on-demand or other similar basis, but DISH may connect subscribers to video replay equipment. DISH also can’t record, copy or duplicate the programs.
DISH does provide a fast forward function that allows skipping of all ads. In 2012, DISH offered an AutoHop feature that allows users to automatically skip commercials, seeing only the first and last few seconds of a commercial break. This made Fox very unhappy.
DISH issued a statement calling Fox’s arguments “ludicrous.”
“We’re happy to see that the courts continue to stand for the uncontroversial principle that you can record TV without infringing copyright,” said Sherwin Siy, DISH vice president of legal affairs in a written statement.
Judges Barry Silverman and Raymond Fisher joined in the opinion.
Case: Fox Broadcasting Co. v. DISH Network, No. 12-57048