Slings and roundabouts: DISH TV's advert skipping is OK in the USA

Variety reports that  U.S. District Judge Dolly M. Gee’s has ruled that DISH Network’s offering of features that automatically skip ads and another that allows subscribers to watch live broadcasts remotely do not violate copyright law. The ruling by the federal judge came just days after DISH and the network challenging its features, Fox, said that a settlement of their litigation was “highly likely.” The litigation was put on hold until October, when a retransmission contract between the companies is set to expire. CBS Corp and ABC had settled similar litigation last year, as part of broader settlements allowing Dish to broadcast the networks' programs.Similar litigation against Dish by NBCUniversal had been put on hold pending developments in the Fox case.

Variety says that Fox sought to limit key aspects of DISH’s Hopper service, including PrimeTime Anytime, which records and stores entire nights’ worth of programming, along with AutoHop, a feature that allows subscribers to automatically skip commercials. It also challenged DISH Anywhere, using Sling technology, which allows subscribers to view live programming remotely, outside of the home, on a range of devices. But it was mixed results for DISH: Whilst Judge Gee ruled that such offerings did not infringe copyright, she sided with Fox in concluding that some of the DISH's features, like Hopper Transfers, which enables users to download shows onto mobile devices, violated its contract agreements with the broadcaster that restrict copying of programming for use outside the home. She also found that DISH’s copying of Fox programming for quality assurance purposes in its offering of the ad-skipping feature AutoHop violated Fox’s exclusive right of reproduction.

The case of course brings to mind the much reported Aereo case - the now defunct controversial streaming video service which used the much mentioned 'mini antennae' to deliver its service to paying customers. In June 2014 the Supreme Court ruled (6-3) that Aereo had violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee". But Gee found difference between the now defunct Aereo and DISH, noting that Aereo neither owned the copyright to the broadcast works nor held a license from the copyright owners to perform those works publicly, concluding that Dish's "sling" technology, did not constitute a "public performance" that infringed Fox copyrights saying 


“DISH does not, however, receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did” adding "“DISH has a license for the analogous initial retransmission of the programming to users via satellite”. 

She went on to say: 

“Aereo streamed a subscriber specific copy of its programming from Aereo’s hard drive to the subscriber’s screen via individual satellite when the subscriber requested it, whereas DISH Anywhere can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box” adding “Any subsequent transfer of the programming by DISH Anywhere takes place after the subscriber has validly received it, whereas Aereo transmitted its programming to subscribers directly, without a license to do so.”


Gee also rejected claims that DISH’s transmissions were a public performance, pointing out that the transmission “travels either to the subscriber herself or to someone in her household using an authenticated device.”

In a statement, DISH said it welcomed the ruling saying: "Consumers are the winners today, as the court sided with them on the key copyright issues in this case".  

In a statement Fox spokesman said the company welcomed Gee's contract rulings, but were disappointed by her copyright findings saying: "This case is not, and has never been, about consumer rights or new technology," adding "It's always been about protecting creative works from being exploited without permission."

Judge Gee's 63 page decision was in the U.S. District Court for the Central District of California dated the 12th January, and had been under seal, and was released in redacted form.  Fox Broadcasting Co et al v. Dish Network LLC et al, U.S. District Court, Central District of California, No. 12-04529. 

More here from Reuters and on PCWorld here and The Hollywood Reporter here.