DISH Network has won a big victory in its fight to preserve its controversial Auto Hop commercial-skipping feature. The Ninth U.S. Circuit Court of Appeals affirmed a lower court's ruling that it doesn't infringe on FOX's copyright for content.

Judge Sidney Thomas ruled that the satellite company's Hopper, a DVR with an ad-skipping feature for catch-up TV, should be seen in light of the precedent of a Sony Betamax case, which held that home recordings do not infringe on copyrights.

The court affirmed the original finding, which said that: (1) DISH can’t be held directly liable for the conduct of its customers (according to the volitional conduct doctrine, the person who causes the copy to be made is the direct infringer, not the service that merely facilitates it); and (2) DISH can’t be held indirectly liable either because time-shifting is a protected fair use and the networks can’t challenge commercial skipping because they don’t have a copyright interest in the commercials.


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"This decision is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control," DISH's executive vice president and general counsel, R. Stanton Dodge, said in a statement.

For its part, FOX was nonplussed: "This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract." It added, "The bar to secure a preliminary injunction is very high."

FOX is still awaiting a ruling on whether it should collect damages for copies DISH made for quality assurance, but Auto Hop appears to be safe.

The Auto Hop feature only works on primetime HD programs shown on ABC, CBS, FOX and NBC when viewed the day after airing — not on live TV. "It's a revolutionary development that no other company offers and it's something that sets Hopper above the competition," said Vivek Khemka, vice president of DISH product management, in a statement last autumn.

Other VOD and DVR options in the market, including TiVo (News - Alert), allow users to fast-forward through commercials, so they still are technically exposed to the visuals. The Auto-Hop feature, on the other hand, will simply hop over the ads, as the name suggests.

A viewer can watch a show with the Auto Hop option commercial-free starting at 1 a.m. ET, after a show has been recorded to the Hopper's PrimeTime Anytime library. Prior to that, the Hopper's 30-second 'hop forward' feature continues to work for same-day viewing. Auto Hop does not work on live broadcasts.

The Electronic Frontier Foundation hailed the win as a victory for consumer choice. “As we observed when the it started, this litigation was yet another in a long and ignominious series of efforts by content owners to use copyright law to control the features of personal electronic devices, and to capture for themselves the value of new technologies no matter who invents them,” it said in a statement.