DISH AGAINST THE NETWORKS: WAITAMINIT, WHAT?

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On a recent episodeof KCRW's The Business, Hollywood news banterers Kim Mastersand John Horn (of the Los Angeles Times) talked about duelling lawsuits between the Dish Networkon 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 claimsthat 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?

Anandashankar Mazumdar

Anandashankar Mazumdar has been writing for Bloomberg BNA since 2000 and has been a legal editor with the Patent, Trademark & Copyright Journal since 2003. Prior to that he was an editor with BNA's Electronic Commerce & Law Report. He writes about all aspects of intellectual property law, including patents, copyrights, trademarks, and trade secrets and is the host of "Do You Copy?," Bloomberg BNA's intellectual property law podcast. He has journalistic experience going back to 1991 and has a law degree from Georgetown University and a bachelor's degree in mass communication from Wright State University. He can be reached at amazumdar@bna.com. His Twitter handle is @AMazumdar_IP.

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