Judge hears arguments in Dish DVR case

Fox sez new functions violates copyright agreements, harm TV biz

Lawyers for Dish Network and Fox squared off in Los Angeles federal court Friday as a judge considered Fox’s request for an injunction against elements of the satcaster’s latest DVR service.

Judge Dolly M. Gee heard arguments in a case that could have broader implications for ad-supported TV networks.

Dish’s AutoHop function makes it easy for consumers to skip commercials entirely on programs recorded via DVR. Dish’s Primetime Anytime service, which includes AutoHop, records three-hour chunks of programming without the consumers having to select which programs to watch.

Fox maintains that these services violate its copyrights and retransmission agreement with Dish. Fox, CBS and NBC took legal action against Dish in May as the satcaster mounted a big marketing push for its new DVR functions.

But just how many people use AutoHop has become an issue.

Dish claims that only 46% of its roughly 14 million subscribers customers use the Primetime Anytime service, and just 3% use AutoHop. But Fox is worried those consumers have already begun to devalue what advertisers are willing to pay for air time.

The network contends it hasn’t yet lost any advertising because of the service, but it said the inability to calculate damages justifies Fox’s claims of irreparable harm.

Attorneys for Fox claimed that Dish was given a “narrow license” to retransmit the signals of its stations, and that includes commercials. Dish argued that the decision should be in the hands of viewers.

“This is not ‘A Clockwork Orange,’ ” said an attorney for Dish. “You can’t make consumers sit with their eyes propped open and make them watch commercials.”

Attorneys for Fox claimed that Dish violates its copyrights by recording primetime schedules en masse, rather than a service in which viewers themselves choose which shows to record themselves. Dish countered that providing three-hour chunks of recorded programming falls in line with its agreement to provide content for personal home viewing.

But the networks are increasingly seeking to monetize video-on-demand rights with satcasters and cable operators. Dish’s service undercuts that effort by doing it automatically.

Judge Gee expressed concern that an injunction would be invasive to consumers if Dish had to dismantle set-top boxes or other equipment.