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
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
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?

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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