The request follows Dish’s own move in New York court last week to amend the way it is presenting its service to a judge: “The Hopper also has PrimeTime Anytime capability, an exclusive feature that allows viewers to enable the recording of HD primetime TV programming on ABC, CBS, FOX and NBC. The Hopper will save all of these recordings for up to eight days (at the consumer’s option) after they have aired (with the ability for the consumer to store selected recordings for a longer period), storing approximately 100 hours of primetime TV shows on the DVR hard drive, and making it easy to access episodes from the previous night, or the previous week.”
The word “automatically” was deleted from the original version. Dish now says Hopper enables a “consumer’s option” to store recordings of primetime TV programming for up to eight days. But that’s not good enough for Fox, which previously succeeded in convincing a court to allow its own suit against Dish to proceed in California.
Last month Dish also introduced a software update that Fox says represents “cosmetic changes…in an attempt to camouflage the copyright infringement that Dish commits every night with its service.”
The update tweaked the DVR technology so that consumers pick which of the major networks are recorded, the timing of programming deletions and the default state whereby commercials are not skipped unless subscribers choose otherwise.
Excerpts from the Hollywood Reporter: Fox claims that “effectively concedes that PrimeTime Anytime as originally distributed and operated was infringing…It does not solve the problem: PrimeTime Anytime still breaches the parties’ contracts and infringes Fox’s copyrights on a massive scale, night after night. The need for a preliminary injunction could not be greater,” says the motion. “PrimeTime Anytime and AutoHop cut the legs out from under the advertiser-supported broadcast television business model, devalue Fox’s commercial air time in the eyes of advertisers, usurp Fox’s control over the timing and manner in which Fox has chosen to exploit its copyright works, and threaten to disrupt Fox’s ability to license its program and recoup its massive investment.”
The motion goes on to quote Dish chairman Charles Ergen as admitting the new service is “not good” for broadcasters and puts the entire TV “ecosystem” in jeopardy.
Fox says it is likely to succeed in its lawsuit because of the language of its 2002 retransmission agreement with the satellite distributor as well as 2010 amendments that added language concerning VOD services. The contract purportedly allows Dish to offer VOD to subscribers but it is “expressly conditioned on Dish disabling any fast-forwarding of commercials during VOD playback.”