Fox, NBC, & CBS Object To Commercial Skip, Sue DISH Network

Dave Zatz —  May 24, 2012 — 81 Comments

Less than two weeks after DISH Network announced their clever and automated, albeit limited, commercial skip functionality Fox, NBC, and CBS have filed suit for copyright infringement and breach of contract:

[Fox] were given no choice but to file suit against one of our largest distributors, DISH Network, because of their surprising move to market a product with the clear goal of violating copyrights and destroying the fundamental underpinnings of the broadcast television ecosystem. Their wrongheaded decision requires us to take swift action in order to aggressively defend the future of free, over-the-air television.

NBC has filed suit against this unlawful service in order to keep over-the-air broadcast television a strong competitor. Advertising generates the revenue that makes it possible for local broadcast stations and national broadcast networks to pay for the creation of the news, sports and entertainment programming that are the hallmark of American broadcasting. Dish simply does not have the authority to tamper with the ads from broadcast replays on a wholesale basis for its own economic and commercial advantage.

This service takes existing network content and modifies it in a manner that is unauthorized and illegal. [CBS] believe this is a clear violation of copyright law and we intend to stop it.

Of course, no one should be surprised by this highly likely development. What remains unknown is if DISH will be forced to remove the feature from their flagship whole-home Hopper DVR or if they might work out some sort of On Demand-esque licensing.

Coincidentally, DISH & Roku just partnered… and Roku’s CEO Anthony Wood happened to found ReplayTV — who was similarly attacked by the broadcasters about a decade ago for implementing commercial skip. So perhaps he had some advice for DISH CEO Joe Clayton as they prepared their own preemptive legal strike today against ABC, CBS, FOX, and NBC:

DISH today filed suit against ABC, CBS, Fox and NBC in federal court for a declaratory judgment on questions that have arisen related to the pay-TV provider’s May 10 introduction of a user-enabled commercial skipping technology called AutoHop. DISH’s monthly subscriber fees include significant “retransmission fees” that DISH pays to the major networks. Although the broadcasters have made much of their content available for free using sites such as Hulu, they have continued to demand substantial increases in their retransmission fees. In addition to increasing media reports of planned legal action against DISH, three of the networks — CBS, Fox and NBC – have rejected ads for DISH’s Hopper Whole-Home DVR, the device that features the AutoHop function.

81 responses to Fox, NBC, & CBS Object To Commercial Skip, Sue DISH Network

  1. Interestingly, Fox is also taking this opportunity to bolster their case by lumping in the SlingAdapter Slingbox placeshifting into the suit:

    “redistributes and streams Fox’s programming over the Internet in violation of copyright law and Dish’s agreements with Fox.”

  2. There’s no surprise here (I’m surprised there weren’t more lawsuits), but how did Fox come up with the idea that this is a copyright violation?

  3. “how did Fox come up with the idea that this is a copyright violation?”

    I agree that copyright doesn’t exactly spring to my mind either, but every army in the world is going to shoot every bit of ammo that they have at DISH, and just see what sticks. I’d wager something eventually will.

    “Interestingly, they’re also taking this opportunity to bolster their case by lumping in the SlingAdapter Slingbox placeshifting into the suit”

    No surprised they’re going after Slingbox. Tossing stuff outside the LAN is against what the current consensus thinks to be kosher.

    I’d strongly assume the timing is just another way of tossing everything against the wall at DISH to make a point about auto-comskip. Sling is just collateral damage here.

  4. It may be collateral damage, but it also may be the biggest gun they’ve got. Mess with the bull, you get the horns?

  5. I think it’s kind of interesting that the service is limited just to the broadcast networks. Seems like it’d be pretty easy for Fox to refuse to negotiate an agreement next time around if Dish wants to play hard ball. Walking away from all that money might be tough, but methinks that Dish set it up this way because it’d be relatively easy to add an HD antenna and still provide access to these channels. Wonder if the next DVR to come out includes a built in antenna as a check on the huge agreements that they’ve had to forge. Otherwise, it would seem like they’d offer the service on the premium channels and not just broadcast.

  6. People have been saying for years that there will eventually be a big battle over ad-avoidance behavior by consumers, without it actually becoming a big issue in reality (at least that I’m aware of). So I hate to make a hasty prediction, but I do feel, at least personally, that it would be smarter for the entrenched TV/Ad powers to start exploring new avenues, embracing innovations like Hopper rather than trying merely to snuff it out.

    As someone who had, and loved, my ReplyTV with its commercial skipping abilities, I was essentially cured of ad tolerance. I can’t watch regular TV anymore, I even record sports and watch them later to avoid commercials.

    I am clearly an outlier, but let’s just say, there are ways right now to acquire content with all the ads removed, and by preventing devices like Hopper the networks might be driving consumers towards solutions that *really* break traditional business models.

    Just a thought.

  7. “People have been saying for years that there will eventually be a big battle over ad-avoidance behavior by consumers, without it actually becoming a big issue in reality”

    The difference is that ad-avoidance behavior by consumers is acceptable to the content companies.

    Pre-rolled, mass-deployed ad-avoidance solutions are not acceptable to the content companies.

    I’m actually fine with the content companies on this one.

    “I am clearly an outlier, but let’s just say, there are ways right now to acquire content with all the ads removed”

    Outliers are fine. Mass-deployment is where the red line is drawn.

  8. I don’t recall the studios/networks/advertisers making much fuss when VCRs had Commercial Advance. Perhaps that’s because all it did was automate the fast-forwarding. You could still see the (high-speed silent) ads, and stop to watch one if you wanted to.

    When ReplayTV added Commercial Advance, they jumped directly over the ads. I think that was too much for the studios/networks/advertisers. If ReplayTV had implemented an automatic fast-forward like on a VCR, they might have avoided the fuss.

    I wonder if Fox would relent if Dish did a fast-forward instead of a hop.

  9. In today’s environment, I can see a ReplayTV prevailing – as it’s a third party solution purchased and operated by consumers. Whereas DISH has retransmission agreements in place that play into this and the whole SlingAdapter thing is an easy target because I’m sure their agreements don’t involve access like this beyond the home. Further, DISH will end up paying one way or another – either with that On Demand style licensing or way higher fees when it comes time to re-up with these guys.

  10. “Further, DISH will end up paying one way or another … or way higher fees when it comes time to re-up with these guys.”

    When it’s time to re-up, if auto-comskip is still above ground, I’d assume the price won’t go up for DISH. I’d assume the content simply will not be made available to DISH.

  11. Add CBS to the lawsuit parade…

  12. Sheesh, I’m getting tired of updating this post. Vacation is supposed to start. Now. Can’t we all just get along? Ironically, even if DISH turns this off the exposure is priceless. Perhaps that’s why they chose this path after all.

  13. “Sheesh, I’m getting tired of updating this post. Vacation is supposed to start. Now.”

    If you wait, I’d bet Disney will join the parade in 15 minutes.

    Mickey’s parades are always fun. The white gloves slapping down the lawsuit adds to the laughs.

  14. “Ironically, even if DISH turns this off the exposure is priceless. Perhaps that’s why they chose this path after all.”

    I’ve been wondering all along what their endgame is.

    Maybe they have some double-secret card trick up their sleeve and they’re being crazy like a fox, but I’d but on just crazy.

    Never get involved in a land war in Asia, never go in against a Sicilian when death is on the line, and never deliver mass-deployed auto-comskip for profit.

  15. DISH has a long and proud history of tilting at windmills… and sometimes find themselves on the wrong end of the lance.

  16. From reading the Fox and CBS complaints, Dish’s service is far more worrisome form a copyright persecutive than ReplayTV. The Dish DVR automatically records every primetime show on the four major networks and stores them for about a week. The only place the DVR uses the automatic commercial skipping is in that cache of recordings. not generally as a technology for all recordings at the user’s direction.

  17. I was dumbfounded when I heard that Dish implemented this feature, so this lawsuit is not a surprise to me. Perhaps, Dish IS doing this for PR purposes and making themselves look better after TiVo lawsuits.

  18. Andrew, yeah it’s a few things. They offer this (1) “Primetime Anytime” feature which automatically records the locals every night and retains them for 8 days. What’s new is the (2) “Auto Hop” commercial skip feature that they just unveiled to go along with it — as of 1AM after broadcast, the option appears to automatically bypass the commercials. We’ve also been told if you move a recording from Primetime Anytime to I guess what you’d call regular DVR storage, the commercial skip feature is retained. And then there’s the (3) “SlingAdpater” – basically a Slingbox variant that they offer to allow placeshifting within and beyond the home. The broadcasts seemed to have been content to let the SlingAdapter and PrimeTime Anytime automatic recording slide… until they added the commercial skip functionality, which was obviously the tipping point. It’ll be interesting to see if these offending pieces are ultimately separated out in someway – as Chucky said they’re throwing everything at the wall, but I assume they’d prefer that DISH just drop it and everyone move on to the next thing.

  19. David Zaslov of Discovery Network was pretty clear on his opinion of the Auto Hop feature at the Cable Show this week. This is more of a paraphrase than a direct quote, but here’s what I’ve got from Zaslav in my notes: Charlie (Ergen) needs our content. If there’s not advertising, there has to be much higher subscription fees. I don’t think it’s sustainable. We need subscriber fees and ad revenue. We need to be disciplined as an industry.

    Come hell or high water the cable programmers will work to preserve the dual-revenue stream. But to Davis’ point, I wonder if the broadcast networks can win at the same fight. Cable is all set to do an end-run around the broadcast networks a la Aereo if that company survives its battles in court. The broadcast networks are on much shakier ground than the premium cable channels. This could get very interesting.

  20. I don’t see Dish having any leg left to stand on. They might be able to force the networks to let them carry their channels without payment I suppose, but without commercials? In this decade with the politicians that in charge right now–you know the same ones negotiating rights treaties with other countries and all? I don’t see it.

    Dish is going to lose.

    Personally I don’t care about that part at all. Its just stupid. Don’t know what they were thinking.

    But if they hurt my precious Slingbox… Why oh why did Dish ever buy them in the first place!

  21. “But to Davis’ point, I wonder if the broadcast networks can win at the same fight. Cable is all set to do an end-run around the broadcast networks a la Aereo if that company survives its battles in court.”

    I continue to think Aereo may be the exception that proves the rule. I continue to think that OTA, handled in the careful way Aereo seems to be handling itself, may survive where all the others fail, due to OTA falling under different regs than non-OTA.

    In other words, I don’t think Aereo’s potential legal success portends anything beyond Aereo’s potential legal success.

  22. Michael Burstin May 25, 2012 at 8:30 am

    So I guess the real question about this is what is in the retransmission contracts that Dish signed with the networks. Could they have sneaked some obscure clause into those contracts which could allow this? Are they going to try to claim that the networks somehow become premium channels because of the carrier agreements? Otherwise, Dish is going to (probably rightfully) have their butts handed to themselves in court.

  23. You will never see DISH use AutoHop on the cable networks (Discovery, USA, ESPN etc…) because of one important reason those networks give DISH a few minutes each hour to insert their own advertising. DISH makes money by inserting those ads so DISH would not want to kill its own cash cow.

    In addition I know DISH is working on technology where when ads will be inserted some viewers will see LOCAL ads instead of inserted ads which are seen nationally. The local ads will be stored and inserted at the correct time automatically by their DVR.

    Neat stuff!

    I find it funny when I see the networks saying that the AutoHop could kill Free Over The Air Television. They forget that satellite and cable companies PAY to carry those OTA signals which in turn gives those channels more viewers. You would think since Satellite and Cable is helping them get more viewers that the TV stations would be paying the satellite and cale companies for helping them expand their audience.

    I don’t see Networks pulling their channels of DISH, doing so will remove their programming from 14 million households which is a lot more not seeing their ads then just the few hundred thousand who may have DISH Hoppers and actually use the AutoHop feature.

  24. “I don’t see Networks pulling their channels of DISH, doing so will remove their programming from 14 million households”

    I assume DISH has agreements with the networks that allow them to carry their programming for a specific period of time into the future.

    Without that, I believe you are incorrect, and that the networks would pull their programming off DISH today, were they able to.

  25. I would LOVE to see them drop them TODAY.

    Imagine what their a revenues would look like because they lost 14 million homes!

    Its my understnading that less then 100,000 people have Hoppers today. So that would be kind of huge loss of earnings.

    Beside I have been watching OTA locals commercial free using Windows Media Center. This technology is nothing new. And I don’t see the networks suing Microsoft.

  26. “Imagine what their a revenues would look like because they lost 14 million homes! … Its my understnading that less then 100,000 people have Hoppers today. So that would be kind of huge loss of earnings.”

    I do understand. But I think you badly underestimate the horror the networks envision by laying down for what they see as a thin entering wedge to the apocalypse.

    “Beside I have been watching OTA locals commercial free using Windows Media Center. This technology is nothing new.”

    Again, outliers are seen as acceptable. Microsoft doesn’t ship WMC with auto-comskip. You had to tinker. You are an outlier. Turnkey, mass-deployed auto-comskip functionality is not seen as acceptable.

    My guess is that they’d have turned off the feed within hours were contracts not in place.

  27. Michael Burstin May 25, 2012 at 11:52 am

    @scott – I think you are missing the point. With automatic commercial skipping, they have ALREADY lost those 100,000 customers. Remember, for the most part, the viewer is NOT the customer. The companies purchasing the ads are the customer.

    While I think these carrier agreements are ridiculous (its OTA TV, they have no right to more money to be carried), the lost of ads revenue which most people still see (you went out of the way to configure commercial skipping – MS never shipped with this technology enabled) – even when I fast forward, the ad still is on my screen – would be devastating for them.

  28. “@scott – I think you are missing the point. With automatic commercial skipping, they have ALREADY lost those 100,000 customers.”

    To be fair to Scott, he’s arguing that while they’ve already lost those 100,000 customers, there are 13,900,000 customers they’d be cutting off to spite their face.

    But I still think his argument is wrong in terms of how the networks would act.

  29. No Mr. Burstin, I think you are missing the point. the majority of DVR customers have already been skipping commercials for years.

    AutoHop just saved me 3 button presses per commercial break.

    As I said I would LOVE to see the locals pull their channels and lose the viewers. (Of course most DISH receivers have built in OTA tuners anyways so it would no harm many viewers.

    Like the music industry they must change the way they do things or die.

    Now one thing I should say that I myself gasped and said Oh no when this new feature was announced because I knew it would mean lawsuits. But from every way I have looked at it I can not find DISH in violation of any copyrights by using AutoHop because the programs are not edited in anyways, the commercials reman in tact. And like skipping commercials by hitting the 30 second skip button it requires a button press by the customer.

    I will also say that I don’t think it was wise of DISH to bite the hand of their partners like this.

    I do think that in a few years people will think of Charlie Ergen and what he has done for home TV viewing like they do for Steve Jobs and what he has done for the Music Industry.

  30. “I do think that in a few years people will think of Charlie Ergen and what he has done for home TV viewing like they do for Steve Jobs and what he has done for the Music Industry.”

    Two notes:

    1) Steve-o drank the music industry’s milkshake. That’s the foundation upon which he built the biggest corporation on the planet. And every other content industry has taken extensive notes on the matter. It’s part of their core curriculum.

    2) Steve-o was only able to do this because the music industry main distribution channel shipped DRM-free digital physical media to its customers, a situation that will never be replicated.

    (Of course, he was aided by the lack of will and skill in other tech companies in allowing him to establish a total monopoly on PMP’s, which was what he leveraged to take over the planet with iOS.)

  31. You say that like its a bad thing.

    Obviously he did something correctly since the company is worth more then the United States Government and people still keep buying his products. :)

  32. “You say that like its a bad thing.”

    Depends where you sat. If you were an Apple shareholder or exec, it was a great and wondrous thing. If you were a music industry shareholder or exec, it was the apocalypse.

    Like I say, folks took notes.

  33. I don’t know why so many on this thread think Dish will lose. I see a lot of precedent backing them and very little to suggestion that they are doing anything wrong. Certainly the argument for copyright infringement seems bogus and there’s even a fair use argument for placeshifting so I wouldn’t be all that worried about losing Sling. The networks might get them for violating their contracts, but I doubt it or else Dish wouldn’t have launched the service. Call me crazy this time, but I don’t think Ergen will just rollover and settle very easily on this one, especially given Dish’s history in court. The studios would be better off buying ReplayTV’s patents from DirectTV or other patents from one of the trolls and then trying to shut down Dish’s DVR entirely. If TiVo wouldn’t have settled, I bet they would have had the firepower to stop Dish from offering this. With more than $1 billion to lose, the studios would be more incentivized to enforce the injunction then to take the cash, no matter what Dish offered. Maybe the DVR advertising patents just got a lot more valuable, but as the networks struggle in court, look for more patent acquisitions to happen.

  34. Michael Burstin May 25, 2012 at 1:13 pm

    I think the copyright issue is actually the strongest. One can look at the entire broadcast of the program, commercials included and see that Dish is editing that work. I don’t know if that is free use or not because they are “claiming” 2/3-3/4 of the broadcast as “new” (for lack of better words).

    @Scott – they have been fast forwarding through them with manual control. Few DVRs even skip (vs. fast forward) by default (something I’m still surprised is enabled on Tivo Premier boxes). And again, it the USER who is doing so, not the software automatically doing so in the background. This is a HUGE difference.

  35. The 30 second skip on Tivo is really a 30-second fast forward, like some VCRs used to do. You still see the images streaming by.

    I prefer to use the normal Tivo fast-forward that has reaction time compensation.

  36. Michael Burstin May 25, 2012 at 1:29 pm

    @MikeTeeVee – hadn’t realized that. I have a premier but after having used my Series 1, 2 and 3 for so many years, I also use the fast-forward as well.

  37. Michael we will have to agree to disagree. If DISH just automaticaly skipped all commericals with no user intervation I would agree with you, but instead now the user must do something for each show to make it work. Its not automatic.

    Since FOX requested a jury trial I guess it will be the consumers like me who will make that call. :)

  38. Michael Burstin May 25, 2012 at 1:34 pm

    But they ARE automatically doing so with no user intervention for ALL prime time shows – exactly what you said they are not doing.

    http://www.engadget.com/2012/05/10/dish-network-adds-auto-hop-commercial-skipping-feature-to-its/ “the new Auto Hop feature edits out the breaks from those PrimeTime AnyTime recordings starting at 1 AM that night”

  39. Mr Burstin,

    I am guessing you have never used the AutoHop feature yourself as you have shown you know nothing about it. Please try it first before spouting off what you think is correct.

    That Engadget article was posted without anyone from Engadget seeing or using AutoHop. And was all based off of speculation based on the press release.

    To watch any show using AutoHop there must be user interaction for AutoHop to work, it does not automatically just start working.

  40. Michael Burstin May 25, 2012 at 1:45 pm

    No, but EVERY review from dozens of sites (tech and non-tech) that I’ve read has indicated that this is how the functionality works. It is rare that every tech review from get it wrong. So if it isn’t how it works, then sure, I’m wrong.

  41. MOST Tech sites have not seen or used AutoHop. Hell most have never used a Hopper since its release on March 15th.

    To be honest not too many people have Hopper’s yet.

    If you want to see it work call up your local DISH retailer and ask them if they have a Hopper setup if they do then go see it for yourself. :) (Or if you are in Connecticut let me know and you can come over to my house and I would be HAPPY to show you how it works. :)

    I credit a lot of the Hopper and AutoHOP misinformation on poor reporting. You know how many articles I have read says AutoHop DELETES the commercials from the recordings?

    Sad that many of these national publications do no fact checking when posting articles.

  42. MikeTeeVee, TiVo offers both 30 second scan and 30 second skip. Although we mostly manually fast forward.

    Scott, I received extensive notes and several dozen pics from a very happy customer. Need to write it up. DISH has a DC office and has trying to get Mari in for a demo. Will probably try to coordinate that in two weeks and invite Rob Pegoraro if he hadn’t seen it yet.

  43. Mari will love it. It’s a very nice system. :)

    Its not perfect by any means but week after week it keeps getting better.

  44. On my Tivo Premiere, the ->| button fast-forwards 30 seconds. I didn’t have to enter any secret codes to enable that feature. You’re saying there’s a way to make it skip instead?

    I prefer the fast-forward behavior anyhow. You can see what you’re missing.

  45. I do have Hopper and regularly use Auto-hop.

    It seems to me there are a few material points in Dish’s defense here. Firstly you can’t auto-hop ads on the night of broadcast. Even if you time-slip a couple of hours, you have to manually skip as usual, not auto-hop that night. And if you watch live, of course, it’s ads as usual. It’s just for watching the next day / later in the week, and in that case, I always use the skip-forward when playing back from a DVR recording (although I saw something suggesting that’s less common than you might think). So while auto-hop is a nice lazy solution, for many people it may not change the quantity of ads they watch in any case, just the number of button presses needed to avoid them (as someone else commented).

    And perhaps crucially, in order to use auto-hop, you do have to manually say “yes” to use it at the start of every program you play back. “Yes” is selected by default, so you just press “ok” twice rather than once to start playback. Not a lot of user intervention to choose autohop every time, but legally it’s there. Dish don’t force the customer to use the feature, but it’s there if they want it – no doubt another argument in their defense, similar I believe to the arguments used in defense of the VCR 30 years ago.

  46. Agreed that Hamish’s post clarifies things a little. There certainly is user interaction to enable this. Not much though. I can clearly see why that might matter legally, but I think the studios won’t see it that way since obviously most people watching on a time delayed basis will choose to skip the ads since its so easy.

    Why might the networks care? Sure they get money from Dish for carriage of their channels, but some 40% of their revenue from those subscribers comes from ads. And ad agencies are increasingly paying for airdate + 3 days ratings to determine how many people watched the show. If Dish had not enabled skip until after 3 days that might have been slightly different I suppose, but they’re only waiting till 1am.

    Do DVR users already skip ads? I agree with others that WMC users running autoskip are outliers and irrelevant. Do TiVo users already skip ads? The numbers I’ve seen are a) that 95% of viewers still watch live and b) that 70% of viewers skip ads on shows they’ve recorded. Certainly there’s still some effect to having seen the ad as you fast-forward or “advance quickly” through it vs. having it deleted as well. I assume they’ve learned to tolerate this.

    Will Egan settle quickly? Of course not, he’s shown with every carrier agreement scuffle, the Tivo lawsuit that dragged on for years after it was obvious they had already lost, etc how crazy he is. I wouldn’t expect a quick settlement.

  47. Well, I’ve known how it works and I still choose to classify it as automatic. Further, while DISH has built in a few hour tape delay that may not be relevant in court as the broadcasters didn’t agree. Either this approach infringes or it doesn’t – what DISH does to make it “fair” is probably not applicable. The automatic recording and place shifting are probably more egregious from a legal standpoint. Then again, I’m no lawyer and haven’t thoroughly looked through the complaints. Should get interesting…

  48. I have to say, crazy or not, legally defensible or not, I *love* the sheer audacity of it. Dish have gone all out to counter the inexorable move online by delivering a product totally focused on what the customer wants – it records everything broadcast for a week without timers, it autoskips the ads for you, it lets you watch anywhere in your home from one central DVR and outside it too with sling – heck it even makes your remote bleep for you if you lose it. It’s crazy genius IMHO. And don’t forget, you can’t skip the ads on Hulu, manually or otherwise. Will be interesting to see if he gets away with autohop, but even if he doesn’t, I *love* the fact he’s having a go at providing the perfect TV delivery system. My hat’s off to him.

  49. “I have to say, crazy or not, legally defensible or not, I *love* the sheer audacity of it … a product totally focused on what the customer wants”

    Well, given that rationale, building a no-muss, no-fuss torrent searcher/client into the Hopper would be even more audacious.

    They could deliver a Hopper that would actually fulfill the prophecy

  50. Actually YOU CAN play Torrents on the Hopper, as it has a full DLNA client on it. :)

    Just need a good DLNA server program and away you go!

    I can even watch NETFLIX on my Hopper.

    Its not a perfect box, but its getting close!

  51. “Actually YOU CAN play Torrents on the Hopper, as it has a full DLNA client on it.”

    No. They need to make it fully “auto”.

    Just type a name of some content into a search box on the Hopper, which then automatically searches out the appropriate torrent, downloads it, and manages it for display.

    That’d be an audacious way to give the consumer what they want: free, no-hassle playback of anything ever made. For marketing, they could simply copy the Qwest ad and change the tagline to “Ride the marsupial”.

  52. I think they dont want to piss of the networks more by adding a Torrent Client which is why I think the DLNA client route will be the only way you can do it.

    My NAS unit can go out and search and download shows for me automatically, so alls I need to do on my Hopper is click play on the files and I am watching TV. :)

  53. “I think they dont want to piss of the networks more by adding a Torrent Client”

    I’m afraid that shows a lack of audacity.

  54. “I can even watch NETFLIX on my Hopper”

    Ok Scott I’m stumped – how do you do that?

  55. I would suppose that an adviser pays for a number of expected eyeballs. So what is the difference to an advertiser if in every issue of, let us say Fortune Magazine, I skip past the ad pages without reading, or on my TV I skip past the ads, either by walking out of the room, or just fast forwarding?

  56. @Faust,

    Think about it like this. You sell your magazine through a number of distributors. One of them rips out all the pages with ads on them before placing the magazines on their shelves. Realize the analogy isn’t exactly right, but you get the idea. Normally SOME of the people might skip a particular ad, but they’d catch a glance at it, and a bunch of people who might be interested in the ad would actually read it. But now all the people who buy your magazine from that store chain won’t see any of those ads at all. Sure some of them might have skipped over all the ads in the past, but now ALL of them do.

    Plus of course the obvious precedent. Turns out this is popular and people prefer their magazines without ads. If other sellers copy what this company has done there won’t be any ads in your magazine anywhere and you will go out of business. So you sue…

  57. I’m not sure your analogy applies. In the case of NBC, CBS etc, or Dish, none of them rip out the ad. In my example, the customer merely chooses not to view, exercising his First Amendment right. You have the right to speak, I have the right not to listen.

    Carrying the NBC suit to an extreme, if the customer chooses to skip the programming and only view the commercials, is there monetary harm to the show producer? Should the producer sue the consumer for not viewing his material, alleging monetary harm?

    Must I read billboards while driving down the highway, assuming that the advertiser has paid the highway commission for the right to display? Perhaps a dashboard camera mount to monitor my attentiveness would be in order. Eventually the car manufacturer, and service shop could be sued if the monitor was overridden and the driver had not attended to the billboard.

    I realize the quandary my argument places paid TV and other forms of commercial promotion, however where is it stated that the captains of commerce have an inalienable right to sequester my consciousness? Or force others in the commercial chain to secure said consciousness?

    As an aside, this is why, in my opinion, the compulsory clause of the Health Care Bill should be struck down by the Supreme Court. How the country deals with those who choose not to participate is another matter. The ‘nanny’ state must have limits, even when fools choose self harm. The United States and the Supreme Court had no say regarding my coming into Being, and must have no say in my departure. In my view, Coming and Going is a personal matter between me and the Universe. Likewise, that which I attend to, and that which I choose not to partake of, is between me and myself.

  58. “If the customer chooses to skip the programming and only view the commercials, is there monetary harm to the show producer?”

    The Replay 5000 had a “super bowl” mode that automatically skipped the game and only showed the commercials, which were, of course, the most entertaining part of most super bowls. ;-)

  59. Very entertaining, indeed. Where will this lead to? Perhaps a device to skip programming and commercials. Who then can be sued? Can the ON/OFF button be made to pay up?

  60. “Must I read billboards while driving down the highway”

    Yes you must, Faust.

    The rest of us don’t have to, but you are compelled to by the Third Amendment.

  61. I am hearing a strong rumor that this automatic commecial skipping might get expanded to other receivers and that DIRECTV is watching very cloely and may launch its own “DIRECTV Genie” which I am hearing will also automatically get rid of the commercials as well.

    Interesting chess game going on!

  62. “The rest of us don’t have to, but you are compelled to by the Third Amendment.”

    You had me worried for a moment.

    Third Amendment: “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

    Background: During the time of the American Revolution, private citizens were required to house British soldiers in their own homes.

    Since I do not consent to house any soldiers, British or otherwise in my car, I see no reason to ‘house’ purveyors of deodorants, panty liners, antacids, and other necessities in my home, car, or TV. I hereby grant the rest of you, similar ‘privileges’, as asserted under the First and Third Amendments, with all commercial interests permanently declared null and void.

  63. I cancelled my first Life Time Fitness membership partially because they made me walk around a Jeep standee at the top of the stairs before hitting the workout gear. I guess $80/month wasn’t enough. But if everyone skipped television ads, I assume the price of content would go up as ad revenue declines. Perhaps quality would decline too. If that’s possible. ;) We’ll end up paying… one way, or another.

  64. “You had me worried for a moment.”

    You ought to be worried. Folks who completely misunderstand the law are indeed compelled to read all billboards while driving down the highway, as the Supreme Court made clear in the landmark Brinegar v Clughlass decision.

    The rest of us can just drive freely.

    The relationship of such matters to auto-comskip is covered by the Content Owners Can Distribute Their Content As They Wish clause of Article Nine of the Constitution.

  65. “But if everyone skipped television ads…”

    Of course, everyone doesn’t skip ads. Even among the subset of folks with DVR’s, the majority of ads end up getting viewed, from the reporting I’ve seen.

    Which is why, even if the current lawsuit fails, the content companies aren’t going to do business going forward with companies that try to mass-deploy auto-comskip.

  66. “The content companies aren’t going to do business going forward with companies that try to mass-deploy auto-comskip.”

    I dont think the content companies are going to have a choice. Little birdie tells me a RUMOR that this technology will soon also work on OTA broadcasts as well.

    The content providers pull them off of satellite, it dont matter to me, I will get them OTA and still have the commercials skipped automatically.

    The content providers will fight (can’t say I blame them) but ultimately they will need to change the way they do things.

  67. “The content providers pull them off of satellite, it dont matter to me, I will get them OTA and still have the commercials skipped automatically.”

    It may not matter to you, but good luck to DISH in selling such a contraption in bulk, especially given the spottiness of OTA reception post-digital transition.

    Not to mention, of course, that NBC/U, Fox, Disney, and CBS own lots of channels and content beyond OTA that are available as leverage.

    Germany always thinks it can win a two front war on paper, but it never seems to work out that way in reality…

  68. Chucky,

    DISH does not have to sell such a contraption. It already exists in MILLIONS of their customers homes. ;)

    Thats about all I can say about that.

    It’s about to get interesting and even more interesting if DIRECTV Hops on with the Genie. :)

  69. @Scott,

    Well that would make this interesting. The obvious problem is that most of the people in this country for various reasons have chosen for some time to subscribe to cable or satellite. My guess is that a significant number of Dish’s customers would find that they can’t receive any or all of the ‘local’ ABC, NBC, CBS and Fox channels they were previously receiving from DISH. It would lessen the blow of course, but as Dave says, these networks also own lots of other channels they can use as leverage.

    Here’s a nice bunch of graphics of the situation:
    http://www.neatorama.com/2008/07/07/who-owns-what-on-television/

    but to summarize:

    NBC owns Bravo, CNBC, MSNBC, SciFi, TRIO, Universal HD, USA, History, A&E, Bio, Bravo, Oxygen, Telemundo, Sundance, Hallmark and a few others.

    Disney/ABC owns ABC, ABC Family, ESPN et al, Disney, Lifetime, Soap

    Fox owns Fox News, Fox Business, FSN, Speed, NatGeo.

    CBS owns Showtime, The CW, The Movie Channel, Flix.

    So while in theory there are only 4 channels in play here in reality there are 30+ channels in play. Not including lots of international channels and such, just the major ones I recognized. Just ESPN alone would knock out huge chunks of their customers.

    I don’t see this working out.

  70. It will be an interesting cat and mouse game that’s for sure. :)

  71. Interesting and potentially relevant coverage of the Areo legal context here:

    http://tech.fortune.cnn.com/2012/05/21/aereo/?iid=obnetwork

    which might also shed some light on the Hopper battle. I suspect that Dish is definitely trying to make the Cablevision DVR lawsuit relevant by delaying the comskip feature until after the shows are no longer live.

    Oh and @Faust, as an aside I personally think the US needs universal healthcare and its basically ridiculous how much the US is paying for its crappy healthcare and outcomes as a result of the kind of arguments you put forward. But that is neither here not there on this site.

  72. “It will be an interesting cat and mouse game that’s for sure.”

    Spoiler alert: After briefly toying with it, the cat eats the mouse.

  73. @Chucky,

    The chase:

    http://catonthekeyboard.com/wp-content/uploads/2012/04/cat-running-for-a-mouse_thumb11.jpg

    is very often brief. But the part where the cat tortures the mouse:

    http://img.photobucket.com/albums/v64/BerthaVenation/toss1mbath.jpg

    very often goes on for rather longer than the mouse would like…

    If this analogy is apt, it will be obvious Dish will lose long long before Charlie Ergen gives up…

  74. “I would LOVE to see them drop them TODAY.”

    Well, it seems that you are slowly starting to get to see your wish come true, Scott…

  75. Local retrans disputes like this happen all the time both on DISH and DIRECTV.

    Nothing really newsworthy there.

    It’s too bad they want a 200% increase and want to be paid for DISH to bring them more viewers.

    They should be paying DISH for helping to bring them a better audience.

  76. “Local retrans disputes like this happen all the time both on DISH and DIRECTV. Nothing really newsworthy there.”

    Note the demand to disable auto-comskip in exchange for a new retrans agreement. That’s the news.

    “It’s too bad they want a 200% increase”

    I strongly suspect all the other MSO’s that don’t employ auto-comskip won’t be asked for that kind of fee increase. But the money is just icing on the cake. This is about auto-comskip, not the fee increase.

    This is how it begins. And since it’s what you’d love to see happen, you ought to be pretty happy at the news…

  77. “They should be paying DISH for helping to bring them a better audience.”

    And HBO should be paying me for telling my friends that it’s a great value in content. But yet, I haven’t received any checks…

  78. Chucky its too bad you need to make up stupid stuff to try making an argument.

    What does telling folks about HBO have to do with a company like DISH having to pay to carry a FREE OTA channel and GIVE the broadcaster more viewers?

    Nothing?

    Your a TROLL.

  79. Chucky is a master of sarcasm and irony. Speaking of which, I assume I have a larger audience than Chucky and should receive any royalty check from HBO first.

  80. “Your a TROLL.”

    No. Just had been in disagreement with you upthread about if the content would get shut off to DISH over auto-comskip, and was taking a very small victory lap.

    (FWIW, I’m on the side of content on this one on the merits. Disagree with content on a lot of things: the length of copyright is indeed a mickey mouse law, I don’t think MSO’s should be allowed to own content, and disagree with content on a few other things as well. But I wouldn’t sell my product to an auto-comskipper.)

    “Chucky is a master of sarcasm and irony.”

    I was particularly proud of my Constitutional response upthread. Zatz Not Funny!

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