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Public Knowledge filed an amicus brief with the
Central District of California today in Fox
v. Dish, a case that could threaten how consumers record and view
programming in the privacy of their home. While this case is only in the
preliminary injunction stage, these pre-trial stages have become increasingly
important in copyright cases. Consequently, this case has the potential to
upend long-standing fair use principles.
The case involves DISH’s “Hopper,” one of DISH’s set-top boxes. The Hopper can be set (by the customer) to record prime-time television on any of the four major broadcast channels. For some programming, the Hopper gives viewers the option to play back the programming without commercials beginning the following day.
Fox argues that this is not protected under the fair use doctrine, arguing that the Supreme Court's analysis in Sony v. Universal Studios does not apply. Fox claims that DISH is not only directly liable for copyright infringement because of the way the Hopper works, but also secondarily liable because DISH provides equipment used by customers to make recordings. Under the theory of secondary liability, one person or company becomes responsible for the illegal actions of another because of the role that person or company plays in the illegal action. Here, Fox argues that users who record programming to watch it later are copyright infringers if they skip commercials. Fox’s argument is not limited just to DISH customers, either. By accusing users of copyright infringement, Fox hopes to hold DISH secondarily liable.
PK argues in its brief that selling a device cannot constitute direct copyright infringement because the element of "volition" is missing—it is the users who decide to use the device; DISH merely supplies its customers with the tools they use. And, importantly to users, PK argues that home recording is still a fair use, and that copyright law does not give Fox the right to control the exact manner in which viewers play back their recordings.
We hope the court will see what would result if Fox’s arguments win the day, and the potential effect this change would have on personal, private, in-home consumption of television. For almost 30 years, consumers have been able to “time-shift” programming—there is no reason for this to change now.
View PK’s Press Release.