The Bloomberg BNA Intellectual Property Blog is the home of the "Do You Copy?" podcast and offers links to selected articles by the BNA IP team, which is accessible to both subscribers and non-subscribers as well as commentary and analysis exclusive to this blog.
Tuesday, June 12, 2012
by Anandashankar Mazumdar
On a recent episode of KCRW's The Business, Hollywood news banterers Kim Masters and John Horn (of the Los Angeles Times) talked about duelling lawsuits between the Dish Network on one hand and a range of television networks (starting with ABC, CBS, and Fox). The dispute is over a new service offered by Dish to its DVR users, AutoHop, which allows a viewer to automatically skip through all the commercials in a recorded program without having to fast-forward through them.
Advertising-based programmers have already been trying to adapt to fast-forwarding, by structuring commercials so that some element of the message will be viewable even while the viewer zooms through. The networks, whose income and production costs depend on advertising, are understandably exercised over the matter.
Now, Dish might have some good precedent in its favor. There's the old Betamax decision, of course, which held that time-shifting is a valid use for recording technology. And there's also the more recent Cablevision case, which allowed subscribers to shift their time-shifting to a centrally located recording server, rather than keeping it all on in-home set-top boxes.
But what intrigues me about this particular case is Dish Network's position. Dish Network itself claims that this is all about consumer choice. But there are plenty of companies—especially technology, communications, and media companies—that limit their customers' choices. (For example, all iPhones have FM radio receivers built in, but users can't use them to listen to free, over-the-air FM radio. They have to stream over the internet, which counts against data limits.)
In this particular case, it seems odd to me that Dish would take a position against the broadcast networks, when—as I mentioned in a recent blog post—they fight tooth-and-nail to get network programming at prices set by the government rather than negotiating with the networks. Even with the explosion of television programming choices available to viewers, the traditional over-the-air broadcast networks still draw the most significant portion of viewers, and the satellite TV services suffer acutely when they're denied access to them. Why would Dish get itself involved in this context? Is this a sign that they are now in a position to annoy the networks?
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