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As anticipated in our blog post from the other day, major television networks have sued Dish over its "Hopper" DVR. Hopper records primetime TV and makes it easier to skip commercials on recorded shows. While Dish is the primary object of the suits, ordinary viewers are also targets. Viewers already skip past commercials on recorded shows and since the invention of the remote control have muted or channel-flipped away from them. But the networks are claiming that if you don't watch commercials, you're breaking the law.
They're also arguing that Dish is breaking the law simply by selling a product that allows people to record TV and play it back without commercials. In essence, they are trying to re-litigate the principal that was established in the Supreme Court's landmark "Betamax" decision which held that VCRs are legal. Their position is that home recording technologies can't get any better than they've been since the basic DVR was invented in the 1990s. But the law does not require technological stagnation.
These suits are legally dubious for a number of reasons, not least because their only legal "hook" is the act of home recording itself. Since watching a recording without commercials is not creating areproduction, a derivative work, or a public performance copyright law simply has nothing to say about it.
But apart from the legal technicalities the suits just make no tactical or strategic sense. Dish customers still see ads on live TV, and if the networks insist on subjecting viewers to commercials even on recorded programs they'll just start getting their content from online sources that already lack commercials. Networks make quite a bit of money from retransmission fees paid by cable TV and satellite operators like Dish and if they want to keep the subscription TV gravy train going, they should welcome attempts by Dish and others to make their services better and more responsive to what viewers actually want.
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They're also arguing that Dish is breaking the law simply by selling a product that allows people to record TV and play it back without commercials. In essence, they are trying to re-litigate the principal that was established in the Supreme Court's landmark "Betamax" decision which held that VCRs are legal. Their position is that home recording technologies can't get any better than they've been since the basic DVR was invented in the 1990s. But the law does not require technological stagnation.
These suits are legally dubious for a number of reasons, not least because their only legal "hook" is the act of home recording itself. Since watching a recording without commercials is not creating areproduction, a derivative work, or a public performance copyright law simply has nothing to say about it.
But apart from the legal technicalities the suits just make no tactical or strategic sense. Dish customers still see ads on live TV, and if the networks insist on subjecting viewers to commercials even on recorded programs they'll just start getting their content from online sources that already lack commercials. Networks make quite a bit of money from retransmission fees paid by cable TV and satellite operators like Dish and if they want to keep the subscription TV gravy train going, they should welcome attempts by Dish and others to make their services better and more responsive to what viewers actually want.
Watch Those Commercials -- Or Else
Public Knowledge promotes freedom of expression, an open internet, and access to affordable communications tools and creative works. We work to shape policy.
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