Dish Amends AutoHop Lawsuit, Calls Ad-Skipping 'Consumer's Option'
CBS Seeks to Unwind Retrans Agreement With Dish Network
Dish Network has filed an amended complaint in a New York federal court in hopes of protecting its AutoHop service, which allows subscribers to bypass commercials.
The original lawsuit was filed on May 24, following a story in The Hollywood Reporter that prompted Dish, CBS, NBC, and Fox to rush to court with separate lawsuits, each meant to win jurisdictional advantage. Attorneys for the broadcasters then attacked what they called Dish's "hastily-drafted complaint." A New York judge agreed, ruling that the broadcasters' lawsuits against Dish could proceed in California, while keeping parts of the case, including the overall dispute with ABC and portions against CBS and NBC, in her own court.
Given more than 12 hours to lodge a less-rushed lawsuit, Dish now has released Version 2.0 of its complaint with subtle but important differences that indicate how the satellite giant is prepared to defend a service that the broadcasters have described as "a bootleg, commercial-free video-on-demand service." In particular, Dish has added language to describe AutoHop and PrimeTime Anytime services as working at its subscribers' behest.
In the original complaint, Dish used this language to describe a feature that allowed a recording of the entire primetime broadcast schedule for all four major networks:
"The Hopper also has PrimeTime Anytime capability, an exclusive feature that allows viewers, with one click, to record in HD all of the HD primetime TV programming on ABC, CBS, FOX and NBC. The Hopper automatically stores these shows for eight days after they have aired, storing approximately 100 hours of primetime TV shows on the DVR hard drive, and making it easy to access episodes from the previous night, or the previous week."
And here's the new language in the amended complaint with our emphasis in bold:
"The Hopper also has PrimeTime Anytime capability, an exclusive feature that allows viewers to enable the recording of HD primetime TV programming on ABC, CBS, FOX and NBC. The Hopper will save all of these recordings for up to eight days (at the consumer's option) after they have aired (with the ability for the consumer to store selected recordings for a longer period), storing approximately 100 hours of primetime TV shows on the DVR hard drive, and making it easy to access episodes from the previous night, or the previous week."
One key deletion from what's above is the word "automatically." This appears to be no accident. Since AutoHop's launch, the system has been subtly tweaked so that consumers pick which of the major networks are recorded, the timing of programming deletions, and the default state whereby commercials are not skipped unless subscribers choose otherwise.
The changes to the system, and the subsequent modifications to the complaint, are likely designed to give Dish a better chance at having a 2008 2nd Circuit decision concerning Cablevision's own remote-storage DVR stand as precedent. In that ruling, which also served as the basis for a judge's recent decision to reject a preliminary injunction against digital TV distribution company Aereo, the appeals court held, among other things, that the service was acting at the behest of its users.
Dish is moving away from touting AutoHop's default advantages to shifting any legal responsibility to users.