ARLINGTON, VA. – Let stand the Hopper, the Consumer Electronics Association said in an amicus brief filed in federal court. The CEA, along with the Computer and Communications Industry Association and the Internet Association, filed a joint amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the Hopper, a set-top box from Dish Network that can be programmed to automatically skip commercials on recorded, prime-time broadcast network programming. Broadcast networks are suing Dish on the grounds of copyright violation.

“CEA believes that the Dish Hopper [digital video recorder] is fully covered by the Supreme Court’s ruling in Sony Corp. of America v. Universal City Studios Inc.” the CEA said. “As the brief states, ‘Recording for personal, private viewing does not infringe; nor does declining to watch commercials.”

Sony essentially ruled that time-shifting in the home—recording a show on videotape and watching it later—did not constitute a copyright violation. It was ruled in 1984. By 2008, recorders were digital, and Cartoon Network went after Cablevision on copyright grounds for introducing a set-top that allowed digital recording and remote storage. Cablevision also prevailed.
 
CBS, Fox and NBCU all filed lawsuits in a California federal court, while Dish countersued in the New York court that ruled in favor of Cablevision in 2008. However, the judge in the New York court found Dish’s filing “improperly anticipatory,” since it was filed within 24 hours of news leaking that networks intended to file. Consequently, the cases are being heard in the U.S. District Court for the Central District of California in Los Angeles, which denied Fox’s request for a preliminary injunction. Fox appealed the decision in the Ninth circuit, where CEA filed it’s friends’ brief.

“With this lawsuit,” CEA chief Gary Shapiro said in a statement, “the Hopper joins the Betamax in the long list of products that entrenched industries have insisted would harm them. In reality, the VCR, the DVR, the SlingBox and other innovative consumer technology products have expanded the market for content and presented ninja content innovators with new business opportunities.” 

The CEA also sided with Aereo on the basis of the Sony Betamax case. Aereo is the New York-based startup using individual antennas in large arrays to deliver broadcast signals to mobile devices. Broadcasters also are suing Aereo on the basis of copyright violation. Aereo has likened its service to Cablevision’s DVR, but Cablevision filed an amicus brief in favor of broadcasters in that case.

Separately, CBS has amended its complaint against Dish for failing to disclose the ad-skipping function of the Hopper during the most recent round of retransmission consent negotiations. CBS is asking the court to void that agreement.

~ Deborah D. McAdams