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Court Upholds Ruling On Dish Network's 'Hopper'

Posted by samzenpus on from the hop-away dept.

An anonymous reader writes "The Ninth U.S. Circuit Court of Appeals affirmed a lower court's ruling in favor of Dish Network, allowing the company to continue forward with it ad-skipping "Hopper" technology. From the article: 'Last year, Fox Broadcasting Company, with the support of other broadcast networks, sued Dish for its "Hopper" DVR and its "Auto Hop" feature, which automatically skips over commercials. According to the Fox, the Hopper automatically records eight days' worth of prime time programming on the four major networks that subscribers can play back on request. Beginning a few hours after the broadcast, viewers can choose to watch a program without ads. As we observed when the it started, this litigation was yet another in a long and ignominious series of efforts by content owners to use copyright law to control the features of personal electronic devices, and to capture for themselves the value of new technologies no matter who invents them.'"

35 of 248 comments (clear)

  1. Hey... by msauve · · Score: 5, Interesting

    This is about "broadcast" networks. They can't have their cake, and eat it, too. In exchange for getting use of public airwaves to make a profit, the public has a right to use what's broadcast.

    Next step - in what way is putting content on the public airwaves not placing it in the public domain?

    --
    "National Security is the chief cause of national insecurity." - Celine's First Law
    1. Re:Hey... by Obfuscant · · Score: 3, Insightful

      Difficulty level: Encrypted transmission and subscription required != "Public".

      Which of the four major networks are broadcasting an encrypted signal that requires a subscription?

      Difficulty level: the four major networks want their signals when carried by Dish Network to be treated differently than what someone can receive OTA. Same content, different rules.

      "This previously public broadcast, re-encoded, is now copyright me,

      Dish Network is not claiming copyright on the content they "re-encode", the copyright stays with the originator. But the originator is looking for different rights depending on the transmission medium. Almost like trying to say "if you watch this program on channel 13-1 OTA you have the right to timeshift it, but if you watch it on 17-2 OTA you don't."

    2. Re:Hey... by viperidaenz · · Score: 2

      You don't have the right to re-broadcast something your received OTA.
      If Dish Network want to re-broadcast something, they need permission. If they want to alter it, creating a derivative work for commercial use, they need further permission.

    3. Re:Hey... by Mr.+Slippery · · Score: 3, Interesting

      If Dish Network want to re-broadcast something, they need permission. If they want to alter it, creating a derivative work for commercial use, they need further permission.

      I don't know how Dish works currently, but when I had their service the receiver hooked up to a antenna for OTA bradcast TV, separate from the satellite dish. Dish Network was not rebroadcasting it.

      And if fast-forwarding through a copy of some content that you possess (whatever its origin) is "creating a derivative work", then anyone using any sort of reference book who doesn't start reading it from the beginning each time is screwed.

      I used to have (well, still have but never use) a ReplayTV PVR that had a similar commercial skipping feature. (There was a lawsuit about it but it was dropped when the company went bankrupt; later models omitted the feature.) All it did was automate what I'd been doing with a VCR (yes, I am ancient of days) for years, hitting fast-forward to skip the noise. So long as the device is just fulfilling the request of its user to skip forward to a different part of the content, there is no "derivative work", no "rebroadcast", and the data's so-called "owners" can get stuffed.

      --
      Tom Swiss | the infamous tms | my blog
      You cannot wash away blood with blood
    4. Re:Hey... by viperidaenz · · Score: 4, Interesting

      I was under the impression they cut the ads out then rebroadcast it. That's copyright infringement.

      Turns out the DVR uses closed captions and other meta data to do the cutting on the DVR. That's protected fair use time-shifting. It's also going to be vulnerable to the networks altering the meta data to trick the DVR into not skipping certain ads - they could charge a premium for those...

      Dish have a few patents that describe this.

    5. Re:Hey... by wonkey_monkey · · Score: 4, Funny

      Some one Godwin this THREAD NOW.

      Don't tell me what to do. You're worse than Hitler!

      --
      systemd is Roko's Basilisk.
    6. Re:Hey... by pedestrian+crossing · · Score: 2

      Hmmm, sounds a lot like the NSA's approach....

      --
      A house divided against itself cannot stand.
    7. Re:Hey... by mog007 · · Score: 3, Informative

      The hopper doesn't analyze meta data or closed captions or anything like that.

      The reason the commercial skip feature doesn't work right after broadcast, is because a human being actually watches the program at Dish HQ, marks the start and end time stamps of each commercial break, and the device then skips those times when you tell it to.

      It's not an elegant solution, but it's immune to anything the broadcasters can try to do to muck up an automated solution.

      --
      Learn something new.
  2. FTFY by girlintraining · · Score: 4, Funny

    The Ninth U.S. Circuit Court of Appeals affirmed...

    What, that us unwashed masses can still use VCR-like features on modern equipment? Huzzah! So glad our courts are clogged up like a fat southern guy's arteries with pointless legal meanderings. What other landmark rulings can I hope to read soon... books in electronic format can be loaned just like regular books? That linking to a page on the internet shouldn't warrant 10 years in prison under the Computer Fraud Act of... whatever?

    Where's a billion dollar frivolous landsuit and contempt of court ruling when you need one, guys? These corporations are killing the court system, and you're dealing with it about as well as that diabetic fat dude I just mentioned is when he neglects to take his shots. You're gonna get tingles at the extremities, and before you know it, you'll be deaf, blind, stupid, and having your bowels cleaned out by orderlies because you can't even shit right in a few years at this rate.

    --
    #fuckbeta #iamslashdot #dicemustdie
    1. Re:FTFY by turkeydance · · Score: 2

      fat?deaf?blind?stupid? point made at fat.

    2. Re:FTFY by girlintraining · · Score: 4, Funny

      fat?deaf?blind?stupid? point made at fat.

      This is the internet, man. You don't just make points here, you pull out a fucking bat and you beat it into them until they stop twitching. And then hit them a couple more times, move to Florida, and claim the other guy threatened your position and you were just Standing Your Ground.

      --
      #fuckbeta #iamslashdot #dicemustdie
  3. Does FOX have standing? by Obfuscant · · Score: 3, Funny

    According to the Fox, the Hopper automatically records eight days' worth of prime time programming on the four major networks...

    Ummm, This, Discovery, USA and BBC-AM? If the Hopper records only the four major networks, FOX has no standing to sue because they aren't involved.

  4. They can try to defeat te tech by bogaboga · · Score: 2

    This Ad skipping technology can be defeated by keeping: -

    1: Avoiding abrupt volume increases,
    2: Avoiding abrupt changes in scene colour saturation,
    3: Keeping the network logo on during commercials,
    4: Randomly playing commercials. I have come to be in position to predict when a commercial is coming on.

    Someone should develop the tech...or even better, patent it.

    1. Re:They can try to defeat te tech by Huntr · · Score: 3, Interesting

      None of that would work because Dish technicians actually watch the broadcasts and manually record when the commercial breaks start and stop.

    2. Re:They can try to defeat te tech by ColdWetDog · · Score: 2

      Madre di dios.

      I hope those folks get paid well and have good mental health benefits. It would be like screening for child porn - you'd never be the same.

      --
      Faster! Faster! Faster would be better!
  5. Down the line... by fyngyrz · · Score: 4, Insightful

    I agree that the decision is sensible in that it allows you to use your own gear at least somewhat as you would choose to (certainly they are not letting us use our gear "freely"), still, one has to consider what a broadcast entity dependent upon advertising revenues will do if those ads no longer generate cash.

    One fairly obvious path is "product placement", where the "ad" is in the show with some character brandishing, using, or otherwise making a point about it. That can be subtle... or it could be quite heavy-handed. There are other paths, some of which end with the disruption or even collapse of the broadcast entity -- if the advertising shifts context -- say, to billboards -- then there's no funding going to the broadcast entity, so now what? Or you might find yourself taxed, a' la PBS or the BBC, in order that these entities have operating funds. Some might applaud that, but some will scream bloody murder about the additional levy.

    Anyway, since ads do almost entirely support a lot of these entities, if you kill the viability of the ad to any serious degree, you can expect some kind of consequential change on the horizon.

    --
    I've fallen off your lawn, and I can't get up.
    1. Re:Down the line... by viperidaenz · · Score: 3, Insightful

      Watching The Walking Dead doesn't make me want to buy a Hyundai SUV.

    2. Re:Down the line... by pwizard2 · · Score: 4, Interesting

      On OTA TV I tolerate advertisement because I can pick up the signal for free. On the other hand, people have to pay for fucking cable/satellite service and they still get ads. Back when I got cable I was upset because I couldn't a-la-carte the channels I really wanted so I was stuck paying for a bunch of shit I had no interest in watching. Broadcasters/channels get no sympathy from me because cable simply isn't worth paying for. I make do with OTA.

      --
      "It is a denial of justice not to stretch out a helping hand to the fallen; that is the common right of humanity."
    3. Re:Down the line... by icebike · · Score: 4, Insightful

      I hope your karma is up to this. You're gonna get pounded.

      No, he's not going to get pounded, because his point is valid.

      The tacit agreement is being changed. The agreement that has held since television was invented, namely that you take the advertising along with the programming, is being renegotiated.

      Its not the GP's fault, he is just the messenger.

      The producers of the programming will have to find a new source of revenue, because nobody works for free. You can expect them to change the terms under which the programming is provided. You will see embedded advertising, or high fees for all programming. Or some as yet unimagined method of revenue replacement.

      But one thing is certain, nobody works for free. Nobody eats for free, except prison inmates. So maybe we can put those guys to work producing content?

      I'd like to see the numbers as to how much an episode of your typical tv show costs. From concept through production, and delivery to your TV.
      If you could subscribe only to the specific programs that you wanted, and in doing so receive them free of advertising, but pay all costs via your fees, , what would your cost per hour be?

      --
      Sig Battery depleted. Reverting to safe mode.
    4. Re:Down the line... by Anonymous Coward · · Score: 2

      Are you sure? The fact that you even knew that means the advertising did its job.

    5. Re:Down the line... by tnk1 · · Score: 3, Funny

      Of course not. They're just buying potential access to your attention for a minute or so. It's up to them to figure out how to make an ad that does make you want to buy an SUV. All the show delivers is your ass on a couch in a situation where you are more likely to see their ad. Sure you might go to the bathroom, or get some food, but you might just sit there and listen to how their SUV has features and warranties and all that other stuff.

    6. Re:Down the line... by Anonymous Coward · · Score: 5, Insightful

      The tacit agreement has been broken for a long time as the networks have continued to lower the value of the content and raise the "price" (number of ad minutes per minute of programming) to ridiculous levels. Watching June Cleaver talk about how Palm Olive made her hands soft while doing dishes at the end of the show vs. 3 minutes of ads for tampons, antidepressants, beer, Chrysler, personal injury attorneys, car insurance, pizza snacks, and GEICO before watching another 5 minutes of the newest SyFy shark/bear/icthysaurus hybrid (ick on all levels) are really worlds apart. Oh yeah, and that on top of paying $70/month to Comcast (remember when cable was advertising-free?) for that in the first place!

    7. Re:Down the line... by pallmall1 · · Score: 2

      Do Comcast and VIACOM know this?

      --
      3 things about computers: they're alive, they're self-aware, and they hate your guts.
    8. Re:Down the line... by interkin3tic · · Score: 2

      Or you might find yourself taxed, a' la PBS or the BBC, in order that these entities have operating funds. Some might applaud that, but some will scream bloody murder about the additional levy.

      If it happens that we rid ourselves of commercials AND get something like another PBS or BBC, then I can tolerate a lot of screaming from some people.

    9. Re:Down the line... by ashkante · · Score: 2

      I very much agree with this. Not to mention that the quality of ads themselves has gone down the drain.

    10. Re:Down the line... by crioca · · Score: 3, Interesting

      if you kill the viability of the ad to any serious degree, you can expect some kind of consequential change on the horizon.

      Collapse of the broadcast entity? Why would I have a problem with this? The “broadcast entity” is the favoured medium of the copyright cartels, who’re doing their best to make the interaction between artist and audience as painful as possible so they can continue on in their role as intermediary. At the same time like any business they want to maximise their profits and minimize their risk. Only “risk” here takes the form of investing in new content, meaning that originality and experimentation are deemed as negative values.

      The collapse of the broadcast entity would speed up the disintermediation between artist and audience and expose new streams of revenue and financing. We’d end up with more artists making more money, producing more content that costs less.

    11. Re:Down the line... by Joce640k · · Score: 3, Interesting

      Watching The Walking Dead doesn't make me want to buy a Hyundai SUV.

      Maybe not you personally, but you know what brand of SUV they drive in that show so the advertising worked.

      --
      No sig today...
    12. Re:Down the line... by Arker · · Score: 2

      You are wrong, the cable companies dont just passively rebroadcast commercials, they add more of their own, constantly.

      --
      =-=-=-=-=-=-=-=-=-=-=-=-=-=-
      Friends don't let friends enable ecmascript.
    13. Re:Down the line... by arekin · · Score: 2

      Do Comcast and VIACOM know this?

      Seeing as cable companies have to pay the providers to air their programming, yes I'd say they do. Next time you wonder why your cable bill keeps going up blame ESPN. They charge an arm and a leg to the cable companies because they know they are indispensable to the customers.

      --
      Disagreeing with you does not make me a troll.
    14. Re:Down the line... by MitchDev · · Score: 2

      Everyone else seems to always forget that cable used to advertise itself as one of the advantages is that there were no commericials.
      Now the cable companies rape you for more money than ever and all the channels have tons of commercials...

  6. Re:Well watch what happens next. by Anonymous Coward · · Score: 3, Insightful

    I subscribe to eztv.it

  7. They have already been paid by Dish by Camael · · Score: 4, Insightful

    ...one has to consider what a broadcast entity dependent upon advertising revenues will do if those ads no longer generate cash.

    That is certainly the argument Fox used. What they conveniently left out is that Fox collects retransmission fees from Dish.

    In fact, Dish was at one time forced to drop Fox programming because, according to Dish :-

    FOX is demanding a new contract with an unprecedented rate increase of more than 50 percent.

    In addition, the broadcast networks including Fox, CBS, ABC and NBC have demanded that its affiliates hand over a percentage of the money they receive from local cable operators that retransmit their signals.

    Broadcasters used to be content with the money they took in from advertisers, which supported "free" over-the-air television. But in recent years as broadcasters have lost viewers to cable and advertisers are shifting to the Internet, stations have been seeking new sources of revenue by demanding payment from cable and satellite companies for the right to retransmit their programming.

    News Corp.'s Fox is not the only network seeking a slice of its affiliates' retransmission fees. CBS, ABC and NBC are also negotiating for a percentage. However, there is a consensus that Fox is being the most aggressive of the networks. None of the Big Three has yet threatened to drop its local affiliate if it doesn't get the money.

    While the corporate skirmishing is waged far above the heads of TV viewers, it is likely to have a real-world effect on households that pay for cable or satellite service — about 90% of all TV-watching homes in the country — in the form of higher monthly rates as local providers look to make up the difference.

    Basically, its all about the money. The broadcasting networks have already been paid by retransmission fees and are double dipping into advertising fees.

  8. Wow, it sounds terrible by Camael · · Score: 3, Interesting

    You probably read it this article.

    At Dish headquarters in Englewood, a suburb of Denver, the day begins no later than 9 a.m. Badges used to be the preferred method of entry into the building. But a few years ago, after noticing that some employees were taking advantage of the system by having others badge-in for them, Ergen upgraded to fingerprint scanners. If a worker is late, an e-mail is immediately sent to human resources, which then sends another to that person’s boss, and sometimes directly to Ergen.

    Or maybe on AOL

  9. A similar case in Germany by Knossos · · Score: 2

    [Full disclosure: I work on a product like this]

    This kind of system is also in operation in Germany. There was a major lawsuit between RTL (huge German broadcaster) and TC Unterhaltungselektronic AG, that very much reflects this lawsuit. Here is a link to the German court ruling as reported by Spiegel: http://www.spiegel.de/kultur/gesellschaft/fernseh-fee-bgh-erlaubt-verkauf-von-werbeblockern-a-305779.html

    I realise this is a bit of a shameless plug, but it is relevant to the interests of this thread:
    http://fernsehfee.de/

    --
    Android Software Engineer
  10. Re:Future problems..... by cmburns69 · · Score: 2

    [Preamble: I work in the industry, so this is an informed statement]

    Viacom, Disney, etc cannot raise prices just for Dish. All the contracts include a "most favored nation" clause that forces the content provider to offer the same terms to all the distribution networks. It could be that Dish will be the first to see the price raised, but when Comcast's, and DirecTV's contracts need to be renegotiated, they will see the same increase.

    --
    Online Starcraft RPG? At
    Dietary fiber is like asynchronous IO-- Non-blocking!