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30 Comm. Law. 1 (2013-2014)

handle is hein.journals/comlaw30 and id is 1 raw text is: COVER STORY Commercial-Free TV ............... 1 A review of the AutoHop decision and the questions it raised about the interplay between copyright law and new advances in digital technology. Chair's Column ....................... 2 Protecting Online Speech ..... 4 State appellate courts are rejecting the need to craft guidelines for lower courts review- ing a motion to unmask anonymous online posters, claiming their civil discovery proce- dures perform this function. But discovery rules alone inadequately protect anonymous speech. Media Law Reform in Yemen ..... 9 A look at how Yemen enacted its freedom of information law. Exporting the Matrix Review ... 11 The collection of essays provides a thought- ful road map that paves the way for the development of a free and vibrant foreign press. No Reporter's Privilege in Criminal Cases ....................... 13 The Fourth Circuit ruled that there is no reporter's privilege in criminal cases-a deci- sion that is both novel and disheartening. Slade Metcalf: The Mentor ...... 18 Communications Lawyer talks with Slade about his career, his book, and his team. Courtside ............................... 26 ommunc ons Publication of the Forum on Communications Law American Bar Association Volume 30, Number 1, November 2013Layr Commercial-Free TV and Aereo: What Lies Ahead for Content Owners in the Wake of the Ninth Circuit's AutoHop Decision? JULIA AMBROSE, CHARLES MARSHALL, AND LAURA S. CHIPMAN U.S. Court of Appeals for T he recent decision of the the Ninth Circuit in Fox Broadcasting Co., Inc. v. Dish Network LLC'-the so-called Auto- Hop litigation-poses interesting and important legal questions regarding the interplay between copyright law and advances in digital technology For example, can a multichannel video provider that designs and operates sophisticated digital recording services avoid copyright liability as long as the consumer pushes or clicks a but- ton to activate the service? Are video on demand (VOD) and other digital recording services simply newer ver- sions of an old Sony Betamax player for purposes of a fair use analysis? How does commercial-skipping tech- nology implicate copyright interests, and who can claim such an interest? Each of these questions warrants its own careful and thorough analysis. But perhaps the timeliest question arising from the AutoHop litigation is how the Ninth Circuit's decision may impact the ongoing Aereo/FilmOn X litigation, which addresses an entirely different set of copyright questions and is a front-burner issue for broadcasters. Julia Ambrose and Charles Marshall are partners, and Laura S. Chipman is an associate, at Brooks, Pierce, McLendon, Humphrey & Leonard LLP in Raleigh, NC. AutoHop Litigation Dish's PrimeTime Anytime Service with AutoHop Ad-Skipping Technology More than thirty years ago, the U.S. Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. held that a consumer's use of a Sony Betamax recorder to copy television programs for later home viewing was a fair use, and, therefore, the cop- ies did not constitute direct copyright infringement.2 Fox's recent dispute with Dish3 concerns a different-and indisputably more advanced-record- ing service known as PrimeTime Anytime (PTAT), featuring an ad-skip- ping device called AutoHop. PTAT allows Dish's subscribers to enable the recording of all of the prime-time programs on each of the Big Four net- works (Fox, ABC, CBS, and NBC) on a set-top device called the Hopper.' Dish's AutoHop service removes all advertisements from the programs so that the consumer can watch commer- cial-free TV. In order to provide the PTAT/Auto- Hop service, Dish makes two different copies of Fox's programs. The first copy is recorded through PTAT and stored on the consumer's Hopper, a device that resides in the consumer's home.6 The second copy is a quality-assurance (QA) copy that Dish makes at its facil- ity in order to mark the commercial breaks so that it can remove the com- mercials accurately prior to playback. (Continued on page 21) Published in Communications Lawyer, Volume 30, Number 1, November 2013. 0 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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