Judge sends AutoHop suit to California


Dish NetworkDish Network has lost its bid to move the legal dispute over its AutoHop ad-skipping technology in New York. U.S. District Judge Laura Swain in Manhattan ruled that CBS, NBC and Fox (the broadcasters suing Dish) can pursue their claims in LA, as they’ve been requesting.

Judge Swain granted a motion by Fox to dismiss Dish’s copyright and contract claims over the Auto Hop, as well as Dish’s copyright claims against CBS and NBC, saying they should be argued in California. Swain’s moves mean several lawsuits will proceed at once on multiple coasts. Dish’s lawsuit against CBS and NBC over contract issues will continue in New York as those issues weren’t asserted in the California filings.

AutoHop enables subscribers to black out ads on programs they’ve saved on their DVRs. When activated, AutoHop turns the screen dark when a commercial break arrives, then returns to the show a few seconds later. The AutoHop, launched in May, is only available for shows airing on CBS, ABC, NBC and Fox–not on cable channels.

The legal venue been an issue since Dish filed a suit in NYC just hours before Fox and other TV networks filed in LA. Dish got a temporary restraining order that prevented Fox from proceeding with its own case in California. New York is believed to be a more favorable location for Dish Network because of the 2008 ruling there that stated pay-TV providers may offer DVR services to their customers without being held liable for copyright infringement.

Swain did rule in favor of allowing to Dish to present its claims against ABC in New York. ABC has not yet filed suit over AutoHop.

Swain said Dish’s copyright complaint “is a mere 13 pages long, fails to name the parties who hold the copyrights, lists neither the relevant copyrights nor the contractual provisions at issue and contains only the most cursory description of the allegedly offending services.”

It confirms suspicions that the lawsuit served as a “place-holder” suit to secure Dish’s preferred forum of adjudication, she said.

Additionally, Dish’s is being given the go-ahead to pursue declaratory action against ABC that it hasn’t breached copyright or violated a contract.

Said Dish in a statement: “Regardless of the venue, we look forward to proceeding with this case, recognizing that it has been 28 years since the Supreme Court’s ‘Betamax’ decision held that a viewer, in the privacy of their home, could record a television show to watch later,” Dish Network’s exec VP and general counsel, R. Stanton Dodge, said in a statement. “The court ruled that ‘time-shifting’ constituted a fair use of copyrighted television programming. Those Betamax users could permissibly fast-forward through commercials on recorded shows — just as DVR users do today. Dish will stand behind consumers and their right to skip commercials, something they have been doing since the invention of the remote control.”

Said Fox in a statement: “We are pleased that the court has determined that Fox, as the true victim and plaintiff here should have the right to proceed in its chosen forum in the 9th Circuit. Now we move on to the real issue at hand — demonstrating that Dish Network has created and marketed a product with the clear goal of breaching its license with Fox, violating copyrights and destroying the fundamental underpinnings of the broadcast television business — which damages not only Fox and the other major networks, but also the hundreds of local stations around the country. We look forward to trying and winning the case on its merits.”

The legal battle over AutoHop between Dish and the networks started in New York 7/2. Swain previously issued a preliminary restraining order 5/30 that barred Fox from pursuing its suit against Dish until the 7/2 hearing. She granted Dish’s request, ruling that Fox, NBC and CBS must show cause on that date why their suits should proceed while Dish’s request for a declaratory judgment that its AutoHop feature does not violate copyright laws is heard. Dish filed its suit 5/24 in New York, hours before Fox filed its suit in LA. NBC and CBS then followed with their own suits against Dish the same day in LA.