18 August, 2013

Copyright and Advert Hopping

To the avid TV watcher, commercials can be both the bane of their existence, providing a break at the crucial moment of your favorite show just when it got interesting, or giving you the perfect opportunity to make a quick snack or to dash off into the bathroom. Since the advent of digital means to record TV, both through the early years of VCRs down till the modern DVR or even recording live TV on demand when you desperately need to pause the action, consumers have always wanted a way to skip them if they so please. For companies who provide your weekly fix of digital entertainment galore, they're a necessary source of revenue. These two conflicting interests pose a dilemma, and a struggle from both sides to keep their respective interests in front of the other. But could skipping commercials infringe copyright? In a recent decision, the US Ninth Circuit Court of Appeals had to decide this very fact.

Foxes are very protective of their copyright
The case of Fox Broadcasting Company v Dish Network LLC concerned a service offered by Dish called the "Hopper". What this little nifty device was what is commonly referred to as a DVR, a Digital Video Recorder, which can be set to record any given TV show at any given time, much like its analogue cousin back in the era of VCRs. After some years of launching its Hopper device, Dish started to offer a capability in the device called "Autohop", which automatically would skip over commercials, only subjecting the person watching the show to the first few seconds and the last few seconds of any given commercial break. Unlike older versions of similar technologies, the function does not require any action on the viewer's part, but skips the commercials once the feature is enabled, whereas in older iterations of DVRs one would only have the ability to skip a certain time, for example 30 second increments. Fox Broadcasting and Dish had a contract between them, where among other things Dish customers were not to be able to fast-forward through any commercials when recording Fox's shows. Fox subsequently sued Dish for breach of contract and copyright infringement, of which the latter is of more interests to us in this instance.

In seeking a preliminary injunction, stopping Dish's service, Fox would have to prove (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. In analyzing the court's decision at first instance, the Court of Appeals looked through precedent to establish whether Fox's claim would fulfill the above criteria to acquire an injunction. Drawing from the Sony Betamax case (discussed on this blog here) the court had to assess whether Dish's service would fall under fair use, which it did. In their decision the court saw that the District Court had correctly decided that Fox did not have a likelihood of success in their case, as Dish was not the one making the copy of the program; Fox would not have suffered irreparable harm due to Dish's service; nor was there a public interest for the granting of an injunction. In finding that there was no likelihood of success for Fox, the court saw that the scales were not tipping in their favor, which solidified Fox's case as one which did not merit an injunction.

The court did note that Fox did not have a claim to begin with as they do not own the copyright to any of the advertisements shown on its network. Without copyright there cannot really be infringement on that copyright, or at least a claim for such. Arguably the court's view was the correct one, and forcing consumers to watch adverts through technological means seems harsh at best. Technology should be used to enable better consumer experiences as opposed to being force-fed something which they potentially don't want to see. Fox can still claim damages for copies made by Dish for quality assurance purposes, which did infringe copyright, but whether they take action will remain to be seen, although seemingly a point of principle should they opt to do so.

Source: Electronic Frontier Foundation

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