Dish Ad Hopper Decision A Boon for Consumers
Recently, U.S. District Court Judge Dolly Gee ruled that the networks would not be likely to succeed on their claims that Dish Network’s Ad Hopper service violates copyright law. This service allows users to record the entire prime-time lineup each night and watch without the commercials a few hours later. The Court did find, however, that copies made by Dish for quality assurance purposes — that, is, copies never seen by customers — likely violated the copyright laws. The Court declined to issue an injunction with respect to the quality assurance copies.
Judge Gee followed the decision by the Second Circuit in the Cablevision case, which allowed similar technology to survive a copyright challenge. Now, of course, Cablevision has opposed Dish to serve its narrow competitive interests.
To me, one of the most interesting things about this case is that how an intermediate copy –the quality assurance copy — can be infringing if the end product — what the consumer gets — is a non-infringing use. This shows how arbitrary results can be when courts apply a rather mechanical set of factors to determine what is fair use. Given the underlying policy behind copyright law — to give creators of content enough incentive to continue creating — it seems hard to justify finding that the quality assurance copies truly infringe. There should be a presumption that if the final use is fair use or otherwise does violate copyright laws, that the intermediate use is permissible.
To draw upon an example, the Electronic Frontier Foundation recently argued, successfully, that a company which made “clean” copies of movies without sexual content. Putting aside whether the end product in that case violated copyright, the studios at first claimed that the defendant had violated copyright by making an intermediate copy (the copy from which the content was removed). In response to the EFF argument, the studios dropped the intermediate copy issue, but the point is similar. Intermediate use often is an easy target for copyright holders to attack and seek powerful remedies, such as injunctions and statutory damages.