FOX loses bid to block DISH's ad-skipping feature
Michelle Clancy | 25-07-2013

DISH Network's controversial Auto Hop commercial-skipping feature has been handed a big legal win: the Ninth US Circuit Court of Appeals affirmed a lower court's ruling that it doesn't infringe on FOX's copyright for content.

Judge Sidney Thomas ruled that the satellite company's Hopper, a DVR with an ad-skipping feature for catch-up TV, should be seen in light of the precedent of a Sony Betamax case, which held that home recordings do not infringe on copyrights.

"This decision is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control," DISH's executive vice president and general counsel, R Stanton Dodge, said in a statement.

For its part, FOX retorted: "This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorised service that clearly infringes our copyrights and violates our contract." It added, "The bar to secure a preliminary injunction is very high."

The Auto Hop feature only works on prime time HD programmes shown on ABC, CBS, FOX and NBC when viewed the day after airing not on live TV. "It's a revolutionary development that no other company offers and it's something that sets Hopper above the competition," said Vivek Khemka, vice president of DISH product management, in a statement last autumn.

Other VOD and DVR options in the market, including TiVO, allow users to fast-forward through commercials, so they still are technically exposed to the visuals. The Auto-Hop feature, on the other hand, will simply hop over the ads, as the name suggests.

A viewer can watch a show with the Auto Hop option commercial-free starting at 1am ET, after a show has been recorded to the Hopper's PrimeTime Anytime library. Prior to that, the Hopper's 30-second 'hop forward' feature continues to work for same-day viewing. Auto Hop does not work on live broadcasts.

FOX and the other main broadcasters have been in litigation to try and block the device, saying that it threatens their traditional advertising models. CBS CEO Leslie Moonves went so far last autumn as to threaten that the network would pull its feeds if the satellite operator continues to market Auto Hop.

"If they want to eliminate our commercials, we will not be in business with them it's pure and simple," he told investors. "We cannot produce an episode of a show for $3.5 million and have the people at DISH say: 'We can pull out the commercials.' That's not how the ecosystem works. If they want to continue down that line, then we will just not be on DISH. That's what will happen. We will go elsewhere, and people will take our content."

Thus far, he has not made good on the threat.