Dish Wins Another Battle In War Over Ad-Skipping Hopper DVR

hopperwithslingThough the legal battle between broadcasters and Dish Network over the satellite provider’s Hopper DVR — which completely skips the ad breaks on recorded, prime-time network programming — is far from over, Dish pulled out an important victory yesterday when a federal appeals panel decided not to issue a preliminary injunction against the Hopper service.

With the Hopper (and its PrimeTime Anytime and AutoHop features), users have the ability to go back several hours later and watch prime-time programming from the major broadcast networks, but without any of the commercials. Doing so requires that Dish edit out the ads before the commercial-free shows are transmitted.

The broadcasters — CBS, FOX, and NBC — claim that this violates their copyright while Dish maintains that this is no different than when an individual chooses to record a program and edit out the commercials — a practice that was given the Supreme Court stamp of approval in 1984 in a landmark case involving Sony’s Betamax videotapes. However, the networks believe that this is different because it’s not the end-user who is choosing on their own to edit tapes for their personal library, but a major satellite TV provider unilaterally deciding to edit out all commercials.

Additionally, the broadcasters allege that Dish’s editing and rebroadcasting of their content violates contractual agreements with the networks.

The plaintiffs, led by FOX, have been seeking a preliminary injunction that would stop Dish from providing the ad-free shows to Hopper users pending the outcome of the case. In the Nov. 2012, a U.S. District Court judge said no to the injunction request.

And so FOX took its injunction request up the legal ladder to the Ninth U.S. Circuit Court of Appeals, which yesterday affirmed the lower court’s ruling. Furthermore, in the appeals panel’s opinion [PDF], Judge Sidney Thomas takes issue with the networks’ claim that editing out commercials violates the broadcasters’ copyright:

“[A]s the district court held, commercial-skipping does not implicate Fox’s copyright interest because Fox owns the copyrights to the television programs, not to the ads aired in

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