Skipping Commercials Wasn’t Copyright Infringement Thirty Years Ago, and It Isn’t Now

Corynne McSherry
EFF

Television broadcasters sure seem to like paying legal fees. In the latest twist in their long-running battle to kill any innovation they don’t control, television neworks are trying to stifle DISH Networks’ Hopper technology in its infancy. The technology allows DISH subscribers to temporarily record primetime TV and then watch it, commercial free, for eight days.

Having lost their battle to shut the service down in federal district court, and an appeals court, the networks are looking for help from yet another appeals court.

As we explain in an amicus brief filed today (with Public Knowledge and the Organization for Transformative Works), they should lose a third time. Here’s three reasons why:

1. DISH isn’t the one making copies of the TV shows. Copyright law is full of insane provisions, but one that does make sense is the requirement that you can’t hold someone directly responsible for copyright infringement if that person didn’t do the copying. Otherwise anyone who makes a machine that can used to make infringing and noninfringing copies would be on the hook for direct infringement. That matters because it’s very easy to show direct infringement: you just need to show that there’s a copyrighted work that was copied (or distributed, etc.) without authorization. Indirect infringement, by contrast, has additional requirements, which means that innovators that market technologies that have both legal and illegal uses are not automatically liable if a customer breaks the law.

2. DISH subscribers are fair users. DISH could still be on the hook if it assisted in and benefited from infringing activity. As it happens, it didn’t, because all the Hopper does is facilitate time-shifting — recording a program so you can watch it later — and the Supreme Court declared more than thirty years ago that that kind of personal use is legal — even if it involves, gasp, skipping commercials.

3. ABC can’t show “irreparable harm.” ABC tried to persuade the district court to shut the Hopper service down while the litigation was pending. But that kind of court order, called a preliminary injunction, is only allowed if the service could cause irreparable harm to ABC, meaning harm that can’t be compensated with money. But DISH is more than capable of compensating ABC for any lost revenue. (Color us skeptical that ABC actually suffered any such harm.)

DISH is, of course, perfectly capable of defending its service in court. We filed this brief not so much to defend DISH, but to defend future innovators. The broadcasting networks are pushing a range of theories that, if adopted, would not only harm DISH and its customers, but also undermine and discourage future innovators who hope to serve and empower consumers. Stifling innovation in video technology goes against copyright’s Constitutional purpose to promote the spread of knowledge. It’s crucial to ensure that technology makers can develop and offer new tools and services without fear of massive penalties, or even being shut down, when those tools and services can be used in substantial, lawful ways and the provider doesn’t have the sort of additional involvement in illegal uses that might subject it to indirect liability. Let’s hope the Second Circuit agrees.

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