Walt Disney Co. (DIS:US)’s ABC television network is trying to shut down Dish Network Corp. (DISH:US)’s ad-skipping TV recording feature two weeks after a federal judge denied a similar bid by a different broadcaster.
ABC said it will seek a preliminary injunction from U.S. District Judge Laura Taylor Swain, according to a filing late yesterday in Manhattan federal court. On Nov. 7, U.S. District Judge Dolly Gee in Los Angeles rejected a motion for an injunction by News Corp. (NWSA:US)’s Fox Broadcasting. Fox appealed the ruling.
The dispute over Dish’s ad-skipping technology, which broadcasters warn threatens their very survival, is being played out in federal courts on both coasts. Dish sued ABC, CBS Corp. (CBS:US) and Comcast Corp. (CMCSA:US)’s NBC in New York in May seeking a judgment that its AutoHop feature, which allows viewers to skip ads, doesn’t violate network copyrights or contracts. Fox, CBS and NBC sued Dish in Los Angeles for copyright infringement and breach of contract on the same day.
Dish, based in Englewood, Colorado, introduced its new digital video recorder, the Hopper, in March. Its PrimeTime Anytime feature can record all the major networks’ primetime shows and store them for eight days after their initial broadcast. AutoHop, introduced in May, allows viewers, with the touch of a button, to skip all the ads automatically, without having to manually fast-forward through them.
The broadcasters claim that AutoHop “will ultimately destroy the advertiser-supported ecosystem” the networks depend on for revenue. Bob Toevs, a spokesman for Dish, declined to comment on the filing.
Dish said in court papers that AutoHop “complies with Dish’s bargained-for contractual rights,” The company, which is the third-largest subscription-TV provider in the U.S., said it pays the networks “hundreds of millions of dollars per year in retransmission fees, collected from its subscriber base, for the right to rebroadcast these signals.”
The biggest U.S. pay-TV companies are Comcast and DirecTV. (DTV:US)
Gee, in denying Fox a preliminary injunction to shut down AutoHop, said, “Although Dish defines some of the parameters of copying for time-shifting purposes, it is ultimately the user who causes the copy to be made.” She also said Fox hadn’t proved there would be “irreparable damage” if no injunction was issued. Any harm to Fox, she said, could be relieved by monetary damages.
In a separate matter, NBC has asked the New York judge to transfer the AutoHop case to Los Angeles. Swain ruled in July against NBC’s motion to transfer the case and NBC claims that the legal circumstances have changed since then.
“Having two district courts on separate coasts interpret the same contract would not serve the interests of judicial economy,” NBC said in the motion for the venue change.
Dish, in a reply brief to NBC’s motion, said, “NBC presents no grounds for the court to reconsider its prior ruling.”
The New York case is In re AutoHop Litigation, 12-04155, U.S. District Court, Southern District of New York (Manhattan). The Los Angeles case is Fox Broadcasting v. Dish Network LLC, 12-04529, U.S. District Court, Central District of California (Los Angeles).
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