The networks’ frustrations with Dish Network’s ad-skipping AutoHop are apparent in the first line of a brief that Fox filed with the Ninth Circuit on Thursday.
“This case is not about time-shifting, the Sony-Betamax, consumer ‘choice,’ technological innovation, the right to get a sandwich during a commercial, roosters, henhouses, or anything Jack Valenti said in 1982,” Fox’s attorneys said in their brief.
Fox is appealing U.S. District Judge Dolly M. Gee’s refusal to put a stop to AutoHop as well as the service to which it is connected, PrimeTime Anytime. Dish’s offerings allow subscribers to record an entire night’s worth of programming on all four networks in one fell swoop and then decide what to watch, and the AutoHop feature makes the shows available with the commercials cut out.
The networks are irked that Dish is trying to cast them as old media out to slow or stop the march of new technology, and that Dish has compared the battle to the legal effort to prevent consumers from recording on videocassette recorders. That led to the Supreme Court’s landmark Sony Betamax decision in 1984, which declared that recording of TV shows for home use was not infringement.
In its brief, Fox, represented by Jenner & Block, said “Dish’s colorful allusions, over-the-top mockery, and baseless accusations that Fox is attempting to relitigate the 30-year-old Sony case have one purpose: to draw the Court’s attention away from the fact that Dish is directly infringing Fox’s copyrights and breaching its license agreement with Fox.”
Fox contends that Dish merely requires subscribers to press an “on” button to activate PrimeTime Anytime as an “artifice that it is really the subscriber ‘doing’ the recording.”
They also took aim at Gee’s reasoning, writing that she “created a standard for direct infringement more restrictive than any court has ever adopted.” They argue that she “effectively nullified” contractual protections they had with Dish restricting the satcaster’s copying and commercial free video-on-demand,
“Dish’s pro-consumer bluster is phony,” Fox said. “Dish is offering ‘commercial-free TV’ because it helps Dish sell subscriptions. But behind the scenes. Dish is planning to eventually substitute Fox’s obliterated ads with its own advertisements.”
In a Jan. 17 reply to Fox’s initial appellate filing, Dish pointed to the “dire prophecy” that the networks issued regarding the VCR and then the DVR, and said, a bit flippantly, “Here we go again.” Dish is represented by Orrick, Herrington & Sutcliffe.
“The Hopper is a souped-up DVR,” Dish said in its filing. “The Hopper still performs the same functions VCRs did in 1984 — just more easily. The Hopper’s PrimeTime Anytime feature gives consumers a simpler way to record blocks of programming, and AutoHop provides a more efficient way to skip ads.”