Industry Groups, Academics Defend Dish AutoHop in Amicus Briefs
A federal appeals court should not block Dish’s Hopper DVR PrimeTime Anytime and AutoHop features, said parties sympathetic to Dish’s arguments, in amicus briefs filed with the 9th U.S. Circuit Court of Appeals. The briefs were filed in response to Fox’s appeal of a U.S. District Court, Los Angeles, decision not to grant Fox’s motion for an injunction. The CEA and Computer Communications Industry Association (CCIA) filed a joint brief supporting Dish. So did the Electronic Frontier Foundation (EFF), Public Knowledge and the Organization for Transformative Works (OTW). And a group of law professors also threw their support behind Dish. A Fox spokesman declined to comment.
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The case’s outcome will have implications for consumers’ long-established rights to record and watch TV programs at a later time, the law professors’ brief said. “While Appellants … claim not to be launching an assault on private, non-commercial time-shifting of television programs, the Sony precedent, or the underlying technology, their legal arguments do exactly that,” the brief said. Granting Fox’s request would “take settled fair uses and turn them into infringements at the copyrights holder’s discretion,” the brief said.
But the brief said the lower court was wrong to conclude that Fox demonstrated a likelihood of success on the merits of its claim that quality assurance (QA) copies Dish makes through the AutoHop feature infringe on its copyright. “Dish creates QA copies solely to extract non-copyrighted facts from Fox’s programs -- the start and end times of program segments,” the brief said. Additionally, 9th Circuit precedent in Sega v. Accolade and Sony v. Connectix as well as other cases favor a conclusion that such quality assurance copies are fair uses of copyright works.
CEA and CCIA also argued the lower court was wrong in its conclusions about quality assurance copies. “The District court should have held the quality assurance … copies noninfringing,” their brief said. “Courts in numerous jurisdictions and diverse contexts have held that it is not infringement to copy copyrighted works for the purpose of accessing noncopyrightable attributes,” the brief said. “To hold otherwise would stifle technological progress and lock up information that Congress expressly placed beyond the reach of copyright."
Copyright law doesn’t grant rights holders such as Fox “absolute control over use of their works,” said EFF, Public Knowledge and OTW in their brief. Like the other amici in the case, they argued the court should affirm the district court’s order but clarify that Dish’s QA copies are protected by fair use. Meanwhile, the court allowed Dish to keep its response to Fox’s appeal under seal, an order said. The order gave Fox 14 days to file an optional reply brief.