OTW Files Amicus Brief in DISH v. ABC

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On January 24, 2014, the OTW filed an amicus brief on behalf of DISH Network in the case of DISH v. ABC. This case, currently before the U.S. Court of Appeals for the Second Circuit, concerns DISH’s “Hopper” DVR, which allows DISH subscribers to temporarily record primetime TV shows and then watch them, commercial free, for eight days. Although the U.S. Supreme Court declared more than 30 years ago that recording television for the purpose of “time-shifting” constitutes copyright fair use, ABC is attempting to shut down the Hopper by accusing both DISH and its users of copyright infringement.

The OTW’s brief, filed jointly with the Electronic Frontier Foundation and Public Knowledge , argues among other things that copying for the purpose of fair use itself constitutes fair use, and that therefore when users instruct the Hopper to record television for the purpose of time-shifting, no one is infringing.

Although this case seems to be only about time-shifting, it has broader implications. Fans rely on people and companies who make the tools they use to create fanworks, which the OTW sees as fair use. For example, vidders must copy and process original material in order to make transformative vids. The OTW thus defends the rights of those who make those tools as well as fanwork creators. An important safeguard when considering fair use is the requirement that copyright infringement can’t happen without a “volitional act.” This requirement appropriately focuses the analysis on the maker of the copy. The focus on the fan creator thus allows for consideration of whether the copying constitutes fair use.