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Judge denies Fox's request to shut down Dish Network's ad-skipping DVR

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hopper logo ces 1020
hopper logo ces 1020

In a case that the country's largest TV broadcasters say is pivotal for their business, a federal appeals court denied Fox's request to shut down Dish Network's automated ad-skipping DVR service, according to a story in The Hollywood Reporter.

Known as the "Hopper," the technology helps users not just fast forward past commercials but skip past them altogether. Fox and CBS sued, claiming that Dish's technology violated their copyrights. A district judge last year refused to grant Fox's request for an injunction and Fox appealed.

"The record did not establish that [Dish], rather than its customers, made copies of television programs."

This was just the latest attempt by TV broadcasters to litigate against companies that enable people to create copies of TV shows for their personal use, which numerous federal courts have ruled is within the law. With this complaint and in the lawsuit TV programmers brought against Aereo, a web TV startup, the strategy is to accuse the companies, and not their customers, of actually making the copies. In both cases, an appeals panel rejected the claims.

"The record did not establish that [Dish], rather than its customers, made copies of television programs for viewing," the panel of judges wrote in their decision. The appeals court also didn't buy the broadcasters' argument that Dish was responsible for the copyright infringement of its customers. To come to such conclusion, the court would first have to rule that consumers copying was somehow unlawful and instead it noted consumers have a "fair use" right to view the shows they copy.

By upholding the lower court's decision, the Ninth Circuit Court of Appeals has dealt a serious blow to the broadcasters attempt to fend off new technologies that the programmers say wrongfully use their content. The problem for Fox, CBS, and the other broadcasters is that copyright law no longer shields them from new technologies and delivery formats. Unless, they can get the laws changed, it appears they will have to accept a new digital landscape.

"We are disappointed in the court’s ruling, even though the bar to secure a preliminary injunction is very high," Fox said in the statement. "This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly."

Dish wrote in a statement that decision by the appeals court is "a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice.”