52:2 Fair Use or Unfair Abuse: How Copyright Law Should Adapt in the Age of Ad-Skipping Technology

Abstract

In 2012, Dish Network introduced a new line of DVR devices, known as the Hopper, underscored by an “AutoHop” feature that allows consumers to splice out commercials from recordings of the four major broadcasting networks’ primetime programming. Shortly after the introduction of the Hopper’s AutoHop feature, the major networks (NBC, CBS, ABC, and FOX) responded by instigating a lawsuit challenging this ad-skipping functionality as copyright infringement. This Comment seeks to guide the judiciary in applying copyright principles to this emergent ad-skipping technology to resolve the ongoing conflict between Dish and the major broadcasting networks. In doing so, the historical evolution of copyright law in response to technological innovation in the television and movie industries is first addressed. Next, copyright struggles faced by the music industry is analyzed to provide further guidance for the proper course of action in the current ad-skipping technology controversy. This Comment then uses these assimilated judicial and statutory responses from different technological areas as inspiration for a proposed solution that should ensure the viability of both the broadcasting networks as well as satellite service providers, such as Dish. Finally, this Comment concludes by summarizing the primary benefits that this proposed solution should have for networks, satellite service providers, and consumers alike.