Ever since the Supreme Court rejected Hollywood’s attempt to kill the Sony Betamax video recorder in 1984, entertainment companies have sought protection from the courts and Congress against newer, more powerful recording technologies that might threaten their business models. In the latest instance, three major television networks — CBS, Fox and NBC — filed separate lawsuits against satellite-TV operator Dish Network, whose Hopper set-top box can record a full week of prime-time broadcasts automatically, store more than 100 hours of shows in perpetuity and play back recordings without the commercials. The broadcasters accuse Dish of violating their copyrights and undermining free over-the-air TV by encouraging people to watch fewer advertisements. The federal courts will be the arbiters of this dispute, but as the entertainment industry must surely know by now, copyright law won’t protect its way of doing business against the march of technology.
The lawsuits’ copyright claims concern three features of Dish’s service that stretch the capabilities of a video recorder to new limits. PrimeTime Anytime can save eight evenings’ worth of programming from ABC, CBS, Fox and NBC. AutoHop identifies the commercial breaks within recordings of those networks’ shows and automatically skips them during playback, starting the day after the programs aired. And the Sling Adapter (an extra set-top box) lets viewers watch on Internet-connected mobile devices what their Hopper is tuning in or has recorded.
The networks raise legitimate questions about why Dish has singled out their programs for automatic recording and commercial-free playback. That aspect suggests that Dish’s goal with the Hopper isn’t just to attract subscribers, it’s to give Dish another bargaining chip in its negotiations with the networks over programming fees.
But the broadcasters are also using the Hopper dispute to try to limit the reach of the Betamax decision and the rulings that followed. Among other things, they contend that viewers violate copyrights by skipping commercials and by storing programs for a long period of time — something that millions of Americans have been doing, with increasing efficiency, practically since the advent of VHS tapes. The broadcasters also assert that it’s unlawful to help viewers record programs en masse — in other words, that recording TV is legal only when it’s laborious.
The problem for broadcasters is that Dish is just one example of how control is moving from content distributors to consumers. That technology-driven shift, which is making it harder to force people to consume something they don’t want in order to get something they do, is what’s really threatening commercial-supported TV. The networks may be able to persuade a court to stop Dish’s new service, and failing that, they can charge Dish more for the right to retransmit their channels. But neither of those steps will stop people from seeking more control over the shows beamed into their homes, or technological innovators from trying to accommodate them.