Hopper Skip Function Jumps into Court

When a TV network boss claimed that skipping commercials on a DVR amounted to theft, most people laughed. The humor has faded away this week with a lawsuit against the manufacturers of one DVR that automatically skips the breaks.

CBS, Fox, and NBC are suing Dish Network over its digital video recorder Hopper. The device officially takes its name from the idea of the signal “hopping” around a home so it can be watched on any TV set. However, a recent update adds an “Auto Hop” feature that automatically skips the commercial breaks on recordings from the major networks.

The lawsuit is based on the idea that by removing the break from the video the user sees, Dish Network is effectively creating a new program and thus breaching copyright. Dish Network disputes this, arguing that although the playback skips the relevant section, the broadcast signal and content remains unaltered.

Dish Network has filed a lawsuit in response. It appears to be a request for a declatory judgment, which is simply a court giving a legal opinion, in this case that Dish Network is behaving lawfully in itself. Such a judgment is not strictly binding in itself, but does carry great weight in any related legal proceedings.

There’s some speculation that the dispute goes beyond the technology itself. A media analyst quoted by the BBC suggests Dish Network introduced the feature as a negotiating tactic and might be prepared to remove it in return for the networks charging lower fees to carry their programming.

Arguments over PVRs go back to 2002 when Jamie Kellner, then CEO of Turner Broadcasting, infamously said of ad skipping that “It’s theft. Your contract with the network when you get the show is you’re going to watch the spots. Otherwise you couldn’t get the show on an ad-supported basis. Any time you skip a commercial or watch the button you’re actually stealing the programming.”

Kellner’s view has never caught on with the courts, and most people have taken the view that the ability to skip a commercial break on a DVR is no different to the fast forward button on a video recorder (or, indeed, going to the bathroom during commercials.)

Whether the courts now take the view that making the process automatic, to the point that viewers don’t even have to press a skip button, remains to be seen.