Making a Case for Modern-day Copyright in Court and in Congress

Originally posted 2018-11-19 11:17:40

logos_Lux_Law_Firm 2By Caroline Lau, Staff Writer, AMD LAW

This week, copyright issues received considerable federal attention both in the Ninth Circuit of the US Courts of Appeals on Wednesday and in a hearing by the U.S. House of Representatives’ House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet on Thursday. While the court ruled that digital video recorders that automatically skip commercials are permissible under copyright law in Fox v. Dish, the House’s subcommittee held the first of two scheduled hearings during which representatives from various media and entertainment industries called on Congress to bolster copyright protection.

In Wednesday’s ruling, the precedent of the 1984 Supreme Court case Sony Corp. of America v. Universal City Studios, Inc. was invoked to uphold the existence and usage of satellite company Dish’s digital video recorder, the Hopper, presumably thus named for its Auto-Hop feature that automatically skips all the ads of a recorded show. Additionally, the Hopper can automatically record all the prime-time shows on television networks Fox, ABC, CBS and NBC through its Prime Time Anytime feature. With regards to the ad-skipping feature, the court said that because it didn’t entail making copies of Fox’s content, copyright issues weren’t raised. The Sony case already permitted the recording of television shows for time shifting under copyright’s fair use doctrine (at that time the product in contention was Sony’s Betamax VCR). As for the Prime Time Anytime feature, the same fair use principle from Sony’s ruling was applied.

Besides copyright infringement claims, Fox also accused Dish of violating their distribution contract. Judge Sidney Thomas was ultimately not swayed by this particular stance although he seemed to put more stock in it than in the argument for Dish’s copyright liability. As Wednesday’s ruling was the second time the court declined to issue an injunction against Dish, the case may go to trial. Fox said they would “review all of our options”, while Dish stated the court’s decision was “a victory for American consumers” involving “the fundamental rights of consumer choice and control.”

On the Congressional side, representatives from the music, photography, and film industries presented their views to the subcommittee members the current copyright climate, the significance of strong copyrights for industry and the marketplace, for innovation and creativity and economic profit. The House’s hearing included a viewing of 3-D video showing the process of making a Star Trek film segment. Issues such as online copyright infringement and piracy were brought up. For one of the participants, executive director of the American Society of Media Photographers Eugene Mopsik, fair compensation and fair use expansion are the biggest problems for his group. The representatives also emphasized that tech companies are their partners in content creation and distribution, not opponents, and copyright reform would be advantageous for all parties. The subcommittee is to hold a hearing with representatives from the tech industry next week.

In the modern landscape of technology, Internet use and growing intangible assets in intellectual property for industries that run on making and marketing creative content, it is interesting to see the tension between handling copyright issues in court case by case—in this instance supporting a previous expansion of fair use—and dealing with copyright matters legislatively, in Congress. This week’s events reflect the legal system’s complex state in this day and age where copyright, and by extension intellectual property is concerned.

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The New York Times. (July 24, 2013). Court Upholds Ruling on Dish Network’s ‘Hopper’. Retrieved on July 27, 2013 from

The Washing Post. (July 24, 2013). Court says skipping ads doesn’t violate copyright. That’s a big deal. Retrieved on July 27, 2013 from

Corporate Counsel. July 25, 2013. Congress Hears Please for Stronger Copyright Protections. Retrieved on July 27, 2013 from

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