The wait is over. Dish Sues Networks, Fox Sues Dish, Over Ad-Skipping Auto Hop, says The Wrap.
In dueling lawsuits (a declaratory judgment action filed by Dish against Fox and others, and a copyright infringement lawsuit filed by Fox against Dish), the issue is the legality of “Auto Hop,” the Dish feature that lets viewers automate what until now has required conscious thought - skipping commercials.
It used to be that the commercial break was the time to rush out and put the laundry in the dryer, pee, or get a snack. Then remote controls let you check the action on a different channel or mute the sound. The advent of the VCR and the DVR allowed one to fast-forward through the commercial break, but resuming “play” at just the right point remained a challenge.
Now, Auto Hop automates the process further, taking out the guesswork. It also brings the guesswork into the law. Since no copyright owner has claimed that a viewer infringes the copyright in an audiovisual work by refusing to pay attention to advertisements injected into pauses in the public performance of the work, how can they make a claim of copyright infringement stick against a company that facilitates non-infringing activity?
I have yet to review the complaints to sort out the fine print in the legal claims, but I find it significant that Dish sued Fox, NBC, ABC and CBS in the U.S. District Court for the Southern District of New York, within the Second Circuit, which has favorable case law concerning a cable company’s facilitation of consumer behavior comparable to a “remote” VCR. Fox sued Dish in the Central District of California, within the Ninth Circuit, which has a notorious history of missing the forest for the trees on copyright matters.