OTW Weighs In on Fox v. DISH

A lot of what the Legal Committee does is behind-the-scenes, so it’s always exciting to be able to share a bit of public advocacy. On January 24, the OTW, together with the Electronic Frontier Foundation and Public Knowledge, filed an amicus brief in the U.S. 9th Circuit Court of Appeals in the case of Fox v. DISH Network.

The Fox v. DISH case concerns DISH’s “Hopper” DVR, which–like VCRs and DVRs before it–allows users to skip commercials on recorded television programming. In some ways, the Hopper makes commercial-skipping more convenient than other DVRs, and Fox has sued DISH, arguing that the Hopper’s DVR features violate U.S. Copyright law. Fox’s position directly conflicts with the U.S. Supreme Court’s landmark decision in Sony v. Universal (“the Betamax Case”) in 1984, which held that home recording for the purpose of “time-shifting” is a lawful fair use.

Fox asked the District Court in California to shut down DISH’s Hopper Service. The District Court denied Fox’s request, ruling for DISH on most issues. But one holding caught the OTW’s attention: the District Court said that when DISH’s engineers made “intermediate” copies of television programs to ensure that the Hopper system was functioning properly, they were infringing. The court said that DISH’s intermediate copies did not have a “transformative” purpose in that they did not alter the expression, meaning, or message of the original television programs.

The case is now on appeal to the 9th Circuit Court of Appeals–and the OTW thought it was important to speak out. Although Fox has argued that its case is just about DISH, Fox’s argument could be extended to the sort of “intermediate” copying that vidders must do in order to make transformative vids. Thanks to the OTW and its allies, the Copyright Office has recognized that transformative vids constitute fair use, and that high-quality intermediate copying is necessary to create such transformative uses. Among the OTW’s arguments in the brief was that when copying is done for purposes of fair use–such as the creation of transformative vids–that copying itself constitutes fair use. Fox wants to extend copyright to control the way that people watch TV, and its arguments could have wide-ranging effects if accepted. Fortunately, the law is not on Fox’s side. The OTW filed this brief to help keep Fox from trying to change the law.

A PDF copy of the brief is available on our website.

One thought to “OTW Weighs In on Fox v. DISH”

  1. Transformative isn’t the only kind of fair use–copying “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not infringement.

    I’d expect that intermediate copies are for one or more of those purposes. The final result may be a transformative copy; the intermediates are *for that purpose* although not transformative themselves.

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