Mitch Stoltz

EFF

Television networks are having a busy month trying to stamp out new TV-watching technology, including telling a court that skipping a commercial while watching a recorded show is illegal. Yesterday, Fox, NBC, and CBS all sued Dish Network over its digital video recorder with automatic commercial-skipping. The same networks, plus ABC, Univision, and PBS, are gearing up for a May 30 hearing in their cases against Aereo, a New York startup bringing local broadcast TV to the Internet.

EFF and Public Knowledge filed an amicus brief supporting Aereo this week.

The suits against Dish are a response to the “Hopper” DVR and its “Auto Hop” feature, which automatically skips over commercials. According to the networks’ complaints, 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 sans ads.

These suits are yet another in a long and ignominious series of lawsuits by content owners seeking to control the features of personal electronic devices, and to capture for themselves the value of new technologies no matter who invents them.

We’ve seen this movie before. Most directly, the Dish suits look like a replay of the 2002 suit against DVR maker ReplayTV. The networks sued ReplayTV for copyright infringement based on another automated commercial-skip feature. They claimed that viewers were infringing copyright when they skipped ads during playback, that skipping “robs the advertisers,” and that ReplayTV should be responsible.

EFF argued then, and in a later suit on behalf of Replay’s customers, that choosing not to watch ads during playback is pretty far from being a violation of federal law. Unfortunately, the cost of the suit drove ReplayTV out of business before the court could rule on the networks’ wacky theory.

Fast forward ten years. The networks are accusing Dish of “inducing” copyright infringement. That’s a legal theory first created in the record labels’ case against peer-to-peer software maker Grokster. The problem for the networks is that a technology maker, service, or other middleman can’t be held liable for inducing copyright infringement unless their customers are actually infringing. And that means the networks will have to convince a judge that people who record a TV show, and later decide to skip over the commercials during playback, are violating federal law.

Dish is fighting back hard, filing its own lawsuit in New York to have its devices ruled legal. Hopefully, the courts won’t turn millions of American commercial-skippers into lawbreakers.

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