A line in the sand?  Fox, Dish and contentious advances in PVR functionality

Head and shouldersBy Matt Walters – @matthew_waltersmatt.walters@decipher.co.uk

The eyes of the media and tech world have been concentrated for most of this month of January on one American city, but it could be argued that many observers were looking in the wrong direction.  Four hundred and fifty miles from the “wearable tech” and “high dynamic range” imaging of this year’s CES in Las Vegas, an unassuming Los Angeles District courthouse played host to a drama with a far more profound near-term impact for how television content is consumed in the United States (and perhaps more widely).  The case was fast becoming the American media world’s Jarndyce v Jarndyce.

Just over two-and-half years since Fox had first sued Dish Networks over the “AutoHop”, “PrimeTime Anytime” and “Sling” functionalities of its Hopper Personal Video Recorder, District Judge Gee ruled that Dish’s offering of features to automatically skip adverts and allow its now 14 million subscribers to watch live broadcasts remotely does not violate copyright law, as Fox had argued.  The 63-page decision carried the date of 12th January, but had been under seal until its announcement eight days later.  At the culmination of a three-week set-to over carriage, both Dish and Fox had on 15th January asked the judge in a joint statement to pause court proceedings on the premise that they would be “high likely” to reach an agreement on Hopper-related issues later in the year.

In the first of the monthly Decipher White Papers for 2015, we examine what the implications of such a knotty and protracted legal case are for the American and UK television industries, both of whom – in terms of the functionality and content propositions their respective major platforms offer – are evolving towards a connected, converged era for television in which the PVR remains core to many people’s television experience.

As part of the White Paper, we:

  • Explore the Hopper’s PrimeTime Anytime, AutoHop and Sling functionality
  • Trace how Fox mounted its legal challenge, and how Dish responded
  • Analyse how this month’s ruling could have a profound near-term impact for how television content is consumed in the United States (and perhaps more widely)
  • Assess implications for the UK television industry, including what this could mean for EE TV’s “Replay” feature and platforms’ wider ambitions for “whole home” functionality
  • Observe that the legal situation around taking a broadcaster’s content outside the home broadband network remains murky, both in the UK and US.

We conclude by arguing that:

  • Though Dish has claimed a legal victory for the presence and ongoing operation of Autohop functionality, it may have been a pyrrhic one
  • It’s unlikely, almost inconceivable, that an ad-skipping mechanism on a par with AutoHop will be introduced on a major UK TV platform
  • With EE TV the first platform to have released “Replay” functionality to the market, the question is whether other platforms will push a similar PVR-centric functionality that allows for the viewer to curate content in what is, in effect, their own multi-channel VOD player
  • “Whole home” functionality, with the PVR at its core, will arrive in the UK in the near to medium term, more than likely beginning with the Sky and Virgin platforms.

If you are interested in reading the full White Paper, please contact matt.walters@decipher.co.uk.

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