May
25
2012

No Skipping Commercials - Dish Network vs ABC, NBC, CBS, and FOX

At least one lawsuit has been filed and two more may have been filed related to satellite company Dish Network's various commercial skipping technologies.

The services in question are "PrimeTime Anytime" and "Auto Hop."  PrimeTime Anytime records ABC, NBC, CBS, and FOX every night for the three hours of "primetime" and keeps those recordings for eight days on a two terabyte  DVR known as the Hopper.  Combined with Dish Network's Auto Hop feature, "a viewer has the option to efficiently fast-forward through commercials with the touch of a button when beginning playback of a recorded PrimeTime Anytime show …."

From Dish Network's point of view this feature saves their customers the trouble of having to fast forward through commercials manually (which everyone does anyway).  As Dish Network points out in its complaint, skipping commercials has been around since the VCR was first introduced.

The DVR was the next generation of VCR, providing the same generally accepted time-shifting capability, and including additional functionality, such as the ability to automatically jump forward thirty seconds at any time during playback.  Auto Hop allows consumers who are already time-shifting their television viewing to skip commercials more efficiently by automatically fast-forwarding through all commercials at the touch of a button. The commercials are not erased or deleted. They remain on the recording and can be readily viewed at each customer's individual option. The DISH Auto Hop feature does not alter or modify the broadcast signal.

Dish Network claims that ABC, NBC, CBS, and FOX disliked the Auto Hop feature and threatened litigation.  In one complaint drafted by FOX attorneys and another complaint drafted by CBS attorneys, the major networks argue that the Hopper is significantly different from a typical DVR  when it is in Prime Time Anytime mode.

Significantly, when the viewer is in PrimteTime Anytime mode, the viewer is not in any way selecting the individual programs to be copied or the individual commercials to be skipped.

It is unclear what is meant by "selecting… the individual commercials to be skipped" as it seems unlikely that there is evidence to support the claim that viewers routinely fast forward commercials on a selective basis, watching one, skipping one, and then watching another.

The major networks refer to the copies of programs made by Dish Network's customers as, "unauthorized" and "infringing" copies of prime time shows.  The also refer to PrimeTime Anytime as a "bootleg broadcast video-on-demand service" which "steals" broadcast programming.

From Dish's point of view, the major networks' allegations dramatically overstate the simple technology involved.  As Dish describes it, the Hopper is simply an improved DVR with a larger hard drive, the ability to record multiple broadcasts at once, and the ability to skip commercials -- features which have existed since the invention of the VCR, just improved.

The major networks' primary concern seems to be that commercial skipping is made easier with the Hopper rather than an argument that all DVRs should be banned.  Apparently if the viewer is inconvenienced enough -- or if advertisers believe that it is difficult to skip commercials -- then the major networks do not mind the DVR which dramatically increases viewership of their programs.

The major networks theatrically claim that if Dish's is not stopped it "will ultimately destroy the advertising-supported ecosystem that provides consumers with the choice to enjoy free over-the-air, varied, high-quality primetime broadcast programming."  (Apparently the major networks are fresh out of ideas on how to make money from their programing).

In contrast to the major networks doom and gloom, Dish claims that viewers have skipped commercials by leaving the room or changing channels for years before the invention of the VCR and later the DVR.

Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

Dish Network also breaks out the "think of the children's safety" argument in its complaint.

Viewers skip commercials for a multitude of reasons. For example, many parents may choose to shield their children from commercials. They may do so for the purpose of avoiding a child's exposure to undesired promotions that are geared specifically to appeal to children or for the purpose of avoiding a child's exposure to advertisements with adult content.

Of course the major networks could simply rewrite their contracts with Dish and other re-broadcasters to include explicit clauses which (annoyingly) ban skipping commercials.  Depending on how this case goes, the major networks may (annoyingly) do just that.  Looks like we may  have to leave the room or mute the TV when a commercial comes on -- just like old times.

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