DISH notches tentative win against FOX in AutoHop suit
Michelle Clancy
| 21 October 2014
After months of the case dragging on, a US federal judge has issued a tentative decision in favour of satellite player DISH Network regarding the Primetime Anytime DVR with AutoHop.

US District Judge Dolly Gee in San Francisco has ruled that the product's commercial-skipping feature does not infringe on the content copyrights of FOX, the other party in the suit.

Other video-on-demand (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. This, on the other hand, will simply hop over the ads, as the name suggests.

That said, AutoHop has significant limitations on its commercial-skipping abilities. The ad-skipping capability is available for the Hopper whole-home HD DVR system and works on prime time HD programmes shown on ABC, CBS, FOX and NBC when viewed the day after airing. A viewer can watch a show with the AutoHop option commercial-free starting at 1am ET, after a show has been recorded to the Hopper's PrimeTime Anytime network DVR library. Prior to that, the Hopper's 30-second 'hop forward' feature continues to work for same-day viewing. AutoHop does not work on live broadcasts.

Nonetheless, the feature has drawn a bucket of lawsuits since its launch in early 2012, and serious discussion of the potential for mass commercial failure for the television industry should advertising be taken out of the equation.

The decision echoes a previous decision by the Ninth US Circuit Court of Appeals, which 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.

The court affirmed the original finding which said that DISH can't be held directly liable for the conduct of its customers (according to the volitional conduct doctrine, the person who causes the copy to be made is the direct infringer, not the service that merely facilitates it); and that DISH can't be held liable indirectly either because time-shifting is a protected fair use and the networks can't challenge commercial-skipping because they don't have a copyright interest in the commercials.

Gee agreed, adding that companies aren't liable for the recordings consumers choose to make.

Gee did, however, say that FOX could have a breach-of-contract claim, given that Primetime Anytime would violate any contractual agreements to not allow FOX content within DISH's video-on-demand bouquet.

The decision is only tentative: she declined to offer final ruling on both FOX's copyright infringement and breach-of-contract claims ahead of a scheduled trial, which will happen in January.