Fox sues Dish over commercial skipping, claims copyright infringement

Dish Networks, the satellite TV provider, is being sued by Fox over its "AutoHop" feature, which automatically skips commercials. Fox alleges copyright infringement, which is a repeat of the claims over ReplayTV, which was bankrupted in similar lawsuits in the last decade. The networks claimed then that the whole program, including the commercials, were a single copyrighted work, and that by automatically enabling the skipping of certain sections, the device manufacturers were making derivative works. It's a really dumb theory of copyright and it's hard to imagine that it would hold up in court -- and if it did, it would mean that, for example, allowing screen-in-screen, or changing aspect ratios, or even custom color balances or audio mixes were also copyright violations, and that these violations took place when the feature was enabled by the manufacturer (who would therefore be liable) and not when the customer turned them on.

A more likely claim from Fox is breach of contract -- it's easy to believe that Fox put a "no skipping the commercials" line in their deal with Dish (and if they didn't, you can bet they will). Moreover, the DRM used in satellite receivers is controlled by the big rightsholders, and the license agreement for that DRM (much of which is a secret) allows them to demand arbitrary control over features in devices that can decode it.

Here's more from the LA Times and Meg James and Joe Flint:

Fox filed its copyright violation and breach-of-contract suit against Dish on Thursday in U.S. District Court in Los Angeles. Dish filed its suit in U.S. District Court in New York.

"The suit asks for a declaratory judgment that the AutoHop feature does not infringe any copyrights that could be claimed by the major networks, and that Dish, while providing the AutoHop feature, remains in compliance with its agreements with the networks," the Englewood, Colo., company said in a statement.

While consumers with digital video recorders can fast-forward through commercials of recorded shows, Dish's AutoHop takes it a step further. The screen goes black when a commercial break appears. A few seconds later, the program returns. The service can't be used on live programming, such as a sporting event, even after it has been recorded.

With more than 14 million subscribers, Dish Network Corp.'s new technology may threaten the networks' ability to continue to charge premiums for their commercial time.

Fox sues Dish over ad-blocking feature; Dish fires back (via /.)

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  1. This is step one.  Step two is disabling the fast forward and mute buttons during commercials.

    1. And given how long it takes to negotiate the signal over HDMI using HDCP, turning off the TV won’t even be an option because you’ll miss 15-20 seconds of the show before a picture shows up.

      The upside is that tech such as CableCARD guarantees there will be a workaround as long as the FCC is able to keep mandating consumer rights. When I have a copy of the stream saved to a hard drive, the content is in “enemy hands,” and in the computing world, that means the battle is already lost. 

    2. Fast Forward, perhaps. But any self-respecting geek watches on a home theater setup, where all audio is controlled via a receiver. Muting there would be a separate system from the DVR/DSS box. Good luck over-riding my Pronto on that.

      1. Nothing to be done about legacy systems; but it isn’t hard to imagine a ‘workaround’.

        Already, in any situation involving HDMI, patent license contract provisions have effectively required that devices with HDMI inputs implement HDCP. HDMI source devices can, and sometimes will, simply refuse to send a signal to non-HDCP devices(eg. DVI displays with an adapter cable).

        Further, HDMI’s ‘Consumer Electronics Control’ command set already provides a mechanism for HDMI-connected devices to coordinate certain things with one another. It’s a sensible enough feature: only use one remote, receiver can bring the TV out of standby, etc, etc.

        Thus, it would be simple enough to imagine making a set of CEC commands a mandatory part of the HDMI implementation, just as HDCP now is, including ones to override volume control, mute, and similar ad-escaping features.

        That would provide everything needed for the cable box, BDROM player, or other source device to control external sink devices and prevent ‘unauthorized’ behavior…

      2. Not everyone has the money for a home theater setup.  So this somehow still self-respecting geek remains at the mercy of the DVR and/or cable company. 

  2. On the one hand, claiming copyright infringement may seem like a really stupid argument.  On the other hand, there is no other hand.  This is just stupid.  Time-shifting has long been deemed legal.  I hope DISH wins, because then devices like Tivo can turn on similar features, and they won’t be at risk of content providers jacking licensing fees like they’ll undoubtedly do with DISH.

  3. Step three is disabling the pause and rewind buttons.  Step four is “you have to watch it, in its entirety, at the time we air it.”  Step five is dictating the size of the screen and volume and EQ settings.

    WHEN WILL IT END?!?!?!

    (Also, this is starting to sound very similar to the previews at the beginning of a DVD that I can’t skip.)

    1. It is me or is Blu-Ray even worse in this regard? They’re determined to make optical media viewing as much of a disaster as the 15+ minutes of ads you have to watch in the movie theatre now. Ridiculous.

    2. It ends with us strapped down for the Ludovico technique – YOU WILL WATCH THESE ADS. (There will be no additional content between them)

    3. TV-mounted camera tracks audience. If you’re caught not paying attention to the commercials you’ll be fined.

  4. Funny, but I just DVR everything and watch what I want by fast forwarding through the commercials. My niece & nephew pause the show for 10 minutes and then they fast forward.

    1. They should pause for 20 minutes, they always stick in a commercial at the end of popular shows, you might have to watch the last ad if you don’t.

  5. These companies and their closed bullshit hardware == FAIL. Not sure how long auto commercial skipping has been a feature of MythTV. 5 years? Longer?

    Also, at this point, they’re so very fortunate that I don’t just cancel TV service altogether. It’s nearly all crap and way way too much money.

    1. I cut the cable, it’s been great.  Netflix, Hulu, and ESPN3 have really allowed me to watch only things I’m interested in and only one of those has any commercials.

    2. Right.  It won’t be too long before most users (yes “users,” not “viewers”) will have this ability as a matter of course.

  6. When I was a kid I would play 45 RPM records at 78 RPM (Chipmunk mode ) or at 33RPM (Leonard Cohen mode).  

    Who knew a 4 year old could be such a prolific copyright violator?

  7. Whoa, whoa, whoa, whoa, whoa, whoa, WHOA.

    What legitimate reason could anyone have for wanting to change aspect ratios? Unless the source is being broadcast incorrectly, and it needs to be corrected for, meddling with aspect ratios should be punishable by the harshest measures available to the A/V community.

    1. Perhaps they mean more of the displaying aspect of the TV.

      I have an older plasma and only subscribe to good old analog cable, so the content is 4:3…  I use the “just” or optimal stretch mode when watching regular TV, for movies it stays in the standard “full” mode.

      I can tolerate wide screen bars top/bottom, but I really hate 4:3 bars on a wide screen display.

      1. Zooming in on 4:3 content, cutting off the top and bottom of the image, is acceptable (though not recommended in the least), but any sort of stretching is VERBOTEN. Honestly, if you care so little about things looking correctly, why are you bothering with a visual entertainment medium to start with?

        Pillarboxing is the ideal way to watch 4:3 content. I really don’t understand any objections to it; are people just upset being reminded that they bought an expensive big TV without the content to go with it?

        1. Wait you can still buy 4:3 TV’s?

          But seriously I DON’T care THAT much about TV shows.  I mean I’m still on super basic 20+ channel analog…mostly cause it is the easiest way for my wife to watch her soaps.  (It’s like $12 a month since we have cable internet.)

          And in reality I have a 42″ 720P plasma (it’s like 5 years old now – and works fine) which sits close to 15 feet away.  At that distance I’d need something huge to be able to see the difference between DVD and Blu-Ray…

          I don’t know what my exact objection with pillarboxing, I just find it very irritating.  But hey to each their own.  I’m not coming over to your house and telling you I don’t like it.  A person’s home entertainment system is kind of a personal thing.

          1. I can understand the debate about whether the average person can tell the difference between 720 and 1080 on a 42″ TV, but no one with 20/20 vision could seriously argue that you can’t tell the difference between SD (DVD) and HD (Blu-Ray).  The difference is striking.  If you don’t care about the difference, I can understand that – no big deal, but know that there is a big difference. 

            Plus a tip, cable companies often provide a cable TV signal through a cable internet line even if the customer doesn’t pay for a TV package.  My cable company does.  I only pay for cable internet, but I plug my TVs into the cable line and we have basic TV (ABC, CBS, NBC, PBS, Fox) free – and that’s in HD.  Save you $12 a month.

          2.  @boingboing-168791eb815e70b2ae8639653ccb665f:disqus

            Well sure there is a difference between SD and HD content, but there are lots of factors that come into play.  For my 42″ plasma, even if it did 1080p I doubt at the 15′ distance from it you’d be able to see a great deal better picture with Blu-Ray vs DVD.

            Realistically I think for the distance I sit from the TV something in the 60″+ range would be needed to really see the difference between the two.

            My parents have a 50″ LCD that you sit about 7 feet from, and I can certainly tell the difference between SD and HD channels easily.

    2.  In general I agree with you, and I can’t stand improperly stretched video.  I even got yelled at by my stupid uncle for fixing the aspect ratio on his TV.  That being said, there is one reason to stretch–if you’re watching TV from far to the side, like I sometimes find myself doing when sick or injured and laid out in a corner.  Stretching an image horizontally cancels out the narrowing effect of watching it at an angle instead of straight on.

      1. Or if you thought Gwyneth Paltro’s fat suit in “Shallow Hal” was a good look for her….

  8. I’d like to know how to get the damn feature to work on my Hopper. I haven’t watched many on the “Primetime Anytime” recordings on my new Hopper but none of them have prompted me that I can skip commercials. And I like to think I am savvy in electronics. If I cannot turn it on then the vast majority of other users probably cannot either.

  9. I see this as comparable with ad blockers. If you’re not willing to view the ads, then don’t watch the content, that’s how it’s paid for.

    Subscription services have their place, but so do ad funded program’s.

    The whole copyright thing is silly though, and this is Fox, so fuck em.

    1. That’s like saying “don’t watch PBS if you’re not going to donate”.

      That may be the revenue stream the content provider is expecting, but I never agreed to support it.

      1. But I don’t watch PBS..  If I did then I might.

        I have Ad Block Plus installed, yet I disable it on BB and a few other websites that I know see a good chunk of their revenue from it.

        1.  I may be wrong, but I’m under the impression that sites like BB get their revenue from people CLICKING on the ads.  So if you turn the adblock off, but don’t click anything, you aren’t helping BB make money.  Click the ads and buy something!

          (Or not.)

    2. TV content is paid for by companies who gamble a certain amount of money on advertising in the hope that people will see the ads and that this will somehow influence them positively in the direction of buying the company’s products.

      The TV channel do not actually get more money if you watch the ads. Therefore they do not get less if you don’t watch the ads.

      If the adverts are badly made, they will be ineffective and you have no responsibility to try to be influenced by them even if they are rubbish.  So it  is no different if they are annoying and you skip them.

        1. If *in general* advertisements didn’t do anything, companies would be *foolish* to spend millions on them. Notwithstanding that, a specific advert can be effective or ineffective, and companies can spend millions on both effective and ineffective advertising.

          If something disruptive happens to make advertising in general less effective, we shouldn’t adopt a knee-jerk response to oppose it and prop up an obsolete business model.

          For example, better critical thinking in the general population would have this effect. Does that mean that thinking critically is stealing?

          I hope I’ve explained a bit clearer this time.

    3. I guess you don’t take bathroom breaks, talk on the phone, make something to eat, etc. when you’re watching a TV program either? Watching that commercial for TAMPAX when you’re a guy does put money in someone’s pocket I guess.

    4. You must have the world’s strongest bladder. Oh, wait. You probably *aren’t* actually willing to watch all the content when you turn on your TV, are you?

      Or, hey, what about when you’re watching a video online? Do you ever click to another tab while the commercial is playing? I bet you have. Shit. That means you’re not really willing to view all ads, every time! Because sometimes you gotta pee or finish an article over at BB.

      Comments like yours confuse me. It’s like you live in an alternative, b&w world.

    5. Yeah that might be a sensible point if Dish customers didn’t actually PAY for the content to begin with.

      Ads made sense back in the good ole days when it was all just beamed out for anybody with a TV or a radio to catch the signal. But people pay for cable or satellite dish services. So why on Earth would you wish to punish them even further by forcing them to watch commercials to pay for the content that they already pay handsomely for in the first place?

      This mentality confuses me and all I can say is that it is pretty damn customer-hostile. However I do agree with you that it is Fucks so Fox em.

    6.  So, I make thingamajigs that people want and I help pay for the production by bundling them with widgets which people do not want. The widget folk know that people may not buy my product but they pay dearly to be included with it anyway. It’s a risk for them but sometimes it pays off. But you would force people to actually use the widget even if they only bought my product for the thingamajig?
      Wait.. what?
      That’s like saying I have no choice but to use the ask.com toolbar since I also use the JavaVM which it comes bundled with.
      I’m sorry, but as a free(ish) human I get to decide what I do and do not watch – not Fox.

  10. I’d be okay if both parties sue each other out of existence and they bring down the cable companies with them. Then we could start up a whole new system.

  11. I guess Fox never leaves open spaces for the local affiliates to run commercials? Because I don’t see how they can claim they own the copyright to those, seeing as the network isn’t broadcasting them…

    1. Our local NBC affiliate either hires morons in the summer months or they don’t sell the advertising space. Can’t tell you the number of times that the Peacock logo flashes on before the program returns from commercial in the summer. Odd too because the affiliate can air the ‘national’ add and make a few coppers off of that. But they don’t.

      1. A few days ago I had the TV on but wasn’t watching, I was using the computer. A Dirty Harry movie was on AMC. AMC has more ads than I’m comfortable putting up with to watch a movie (and they edit for content) so I wasn’t really paying attention.

        But I noticed that at one point the commercials ended, and there was less than two minutes of a car chase before the commercials came back! They did it again at the next commercial break. 

        It was the local ads. I don’t know if they’re inserted manually or on a timer, but they rarely line up properly (a second or so of the national ad plays before cutting abruptly to the local ad) and in this case they were blocking out huge chunks of the actual content.

        In other words: yes, there are morons afoot running these things :)

  12. No one is forcing us to watch Fox programs. Change the channel! Or better yet, turn the thing off and do something useful or fun. 

    1. I bet you don’t even own a TV.  There’s always one of you.

      I’m also not sure how “useful” it is to tell strangers on an internet forum what kind of entertainment they should be enjoying or what is and isn’t considered “fun” in your world.

      I assume you never relax or zone out? You’re *always* doing something useful or fun?

    1.  Actually, I’ve seen several prominent product placements *within* shows recently (phones, cars, etc). It was even worked into the script of an episode of House. Two of the doctors are driving somewhere and one says “Watch out for that curve!” and the other starts talking about the adaptive handling feature of the car.

      1. That’s pretty lame product placement. Unless the writing was very good it seems like that must really take you out of the show.

        On the other hand I do sometimes enjoy when comedy programs incorporate product placements, making them overt and making the product placement a joke (sometimes even breaking the fourth wall).

        On the show Community this past season Subway (the sandwich place) was a sponsor (listed in the credits) and a Subway opened at the school that the show is set in. What’s funny is that one of the main characters wanted to open an independent sandwich shop, and the corporate giant Subway locked her out. 

        They made a lot of negative commentary and disparaging remarks about corporations and Subway in particular (though there was an overt scene where a character enjoys a Subway sandwich like your House example, though it was played for laughs here) across several episodes. In the last episode of the season the Subway at the school closes and the character who wanted to open an independent place gets the contract.

    2.  The law unquestionably props up business models.  Relationships between parties are governed by contracts, enforceable in courts.  Why shouldn’t Fox be able to sue Dish if Fox believes Dish’s technology infringes on their agreement?  Enforceability of contracts is really important for all sorts of businesses, from international mega conglomerates to mom and pop stores and small, crowd-sourced ventures.

    1. And when every other broadcaster does the same thing?  And every website?

  13.  Fox has a fairly simple problem: they are trying to sell Diablo 1 in a world with Diablo 3. Even if they win the lawsuit, they are going to have a product which no one wants anymore, good luck with that.

  14. Time for a Contact reboot. S.R. Hadden needs to roll out Foxnix…or is that already covered by Preachnix?

  15. Doctorow, you are wrong.  The Conditional Access in Dish STBs is owned by Nagrastar, which is a joint venture between Echostar (Dish) and Kudelski SA, a publicly traded, independent Swiss media security company.  Nobody related to its ownership has an interest in restricting user functionality beyond that which is desired by Dish or demanded by rights holders as a condition of providing content.  DVR functions like fast forwarding are not relevant to CA requirements.

  16. I really wish Fox would go back to their roots of the mid 80’s to mid 90’s.  Having shows that were low brow, maybe even a low budget, but had fairly good content and quality.  Most of the shows I watched growing up were on Fox:  In Living Color, Married with Children, Simpsons, X-Files, Sliders, a ton of other short lived and crappy sci-fi stuff.  Yeah they didn’t have as much of the market or budget, but at least the shows were different.

    Outside of Fringe I’m not sure there is a single Fox show I watch on a regular basis.

    1. You have to wonder if the creation of Fox news and the rise of the political lunatics didn’t warp the whole brand, because those early shows were creative and had people who went on to do good things, and now they are just cookie cutter shows starring nobody. 

  17. I’m fine with ads. Sure I’ll mute hulu or ignore it if I can, but I’m not so entitled as to think I deserve free content simply because I’m clever enough to get at it.

    1.  We are all entitled to choice @google-e4a12359b2cc3b4a945370e90bc85871:disqus  Some people choose to skip ads. This isn’t a question of clever either. Since Zenith introduced the remote, we have been looking for ways to skip commercials. The only problem here is that a major media distributor has introduced a product that actually does it.

  18. It’s not a derivative work for resale. If I make a file of magazine clipping on a subject, I cut out the advertising, but it is for my personal use, not commercial resale, and it’s not a reproduction.

    If Dish was clipping out the commercials and selling a database of the edited shows, that would be piracy  more than copyright violation.

    Also, there would be a preexisting licensing agreement between Dish and Fox, and Fox complained that Dish was creating a beef between Fox and the sponsors, and Dish waved the Fox/Dish agreement and said “Sucks to be you!”  So now Fox is trying to apply pressure. Just a hunch.

  19. moz moz: “If advertisements didn’t do anything, companies wouldn’t spend millions on them”

    Rhino horn? Tiger bone?

    1. I saw an Enzyte commercial the other day (“This is Bob” grinning maniacally over his gigantic shvantze), but the Enzyte guy (not Bob) is doing 20 years in prison for various frauds. 

  20. And similarly book publishers, by using the random access technology called “pages”, and allowing readers to skip chapters are also creating derivative works, and thus infringing on the authors’ copyrights.  When will Cory and other authors start standing up for their rights, like Fox is so bravely doing?

  21. Go ahead, Fox.  Make the TV watching experience as painful as possible.  I already bailed on cable TV a couple of years ago, and so far I am seeing no reason to go back.  Watching a TV show that is 25% ads is just not worth it.  I’ve got the internet now, and Hulu or Netflix are better deals with less or no ads.  If they spent half as much time trying to make the TV experience better rather than suing to protect their antiquated distribution model, they might actually pick up some new viewers.

    1. If skipping ads is ‘stealing’, then with that in mind:

      ♫ Yo, ho, yo, ho, a pirate’s life for meeee! ♪♩

  22. If their claim of the whole program including the commercials is a single work, then it should be easy to see if that’s the case.  Check to see if their affiliates have specific permission to “create derivative works” in their contracts.  That’s what they would be doing when they insert local commercials.

    That also would mean that they’d have to hold separate copyright for hundreds of “derivative works” across the country and there would be a whole new batch of them every time it aired, because the commercials would change each time.

  23. Is Fox’s argument that their ENTIRE LINEUP from morning, noon and night is COPYRIGHTED?  Just wanted to confirm this, I think I may have unknowingly sustained  a head injury and my cognitive abilities may be a bit scrambled because none of this makes any sense.  

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