Dish’s controversial DVR product is in the clear after a California appeals court ruled on Wednesday that the Hopper’s ability to skip ads and record swaths of primetime TV doesn’t violate copyright law.
The unanimous three-judge decision is a blow to Fox, which sued Dish last year, and other broadcasters, which fear that ad-skipping will erode the value of their advertising.
The judges based their decision on earlier decisions that held that hat technologies that allow for private copies — like the Betamax and Cablevision’s DVR — are fair use under copyright law. In other words, Dish was not liable because, from a legal standpoint, it was the viewers, not Dish, who were making the copies.
The decision is significant because it further loosens the control that broadcasters can exert over the shows they transmit. In an astute analysis at the Washington Post’s Wonkblog, copyright professor James Grimmelmann suggests that “scale is no longer an issue” when it comes to primetime and that consumers can now record large volumes for personal consumption.
The court did not explore the ad-skipping issue in detail, in part because Fox only owns the copyright to its shows, not to the ads.
The Hopper ruling comes at the same time that broadcasters are experiencing setbacks in other areas of the TV industry. This includes an affirmation last week by an influential New York appeals court that Aereo, a service that beams over-the-air TV to smartphones for $8 a month, is also legal. Meanwhile, Time Warner Cable is encouraging viewers to try Aereo as part of a PR campaign against CBS over a contract dispute.
Dish’s CEO, Charlie Ergen, also suggested this year that viewers are “cutting the cord” to get away from traditional TV models.
In the Dish ruling, the California court did leave a glimmer of hope for Fox by suggesting the broadcaster could restrict the use of ad-skipping through the contracts it signs with distributors.