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Dish's Ad Skipping DVR Survives Legal Assault
Judge Denies Preliminary Injunction for Hopper DVR

As we've been discussing, Dish is now offering users a new DVR ad-skipping technology that has most cable and broadcast executives running for the waaaaambulance. Dish's Hopper technology simply automates something DVR users are already doing (skipping ads), provided the program they're viewing is at least one day past its live air date. The result has been an amusing platter of broadcast executive hysteria and several lawsuits, companies like Fox and Time Warner Cable insisting that Dish is destroying the known television universe by giving consumers what they want.

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In a good bit of news for Dish, the company appears to have survived the preliminary legal assault by broadcasters with a Judge denying a broadcaster request for an injunction. Judge Dolly Gee in the Central District of California stated that the broadcaster case that the technology violates copyright and truly harms their business wasn't very strong:
quote:
Judge Dolly Gee in the Central District of California court this week refused News International’s Fox Broadcasting subsidiary a preliminary injunction to prevent Dish shipping its Hopper Whole-Home DVR to punters...Gee determined that Fox was unlikely to be able to prove that it has suffered irreparable harm from the copies Dish made as a way to back up recordings on consumers’ DVRs, Dish said.
In a statement, Dish called the ruling a "victory for common sense and customer choice."
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FFH5
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join:2002-03-03
Tavistock NJ

FFH5

Premium Member

Content companies will find new ways protecting ad revenue

If the courts won't stop ad skipping, ultimately the content companies will find a way to protect their ad revenue. If they don't, they will go out of business because their costs can't be totally covered by just selling the content. They need that ad revenue to make a profit. IMO the placement of product within the content's story line will be the end result. Long closeups of cans of Pepsi being used by the character in the show. Toothpaste with the product name prominently displayed for several seconds; characters using the product name in the dialog; etc; etc.

footballdude
Premium Member
join:2002-08-13
Imperial, MO

footballdude

Premium Member

Re: Content companies will find new ways protecting ad revenue

That's good for some stuff, but it might be a little more difficult to advertise stuff like hemmoroid cream.

FFH5
Premium Member
join:2002-03-03
Tavistock NJ

FFH5

Premium Member

Re: Content companies will find new ways protecting ad revenue

said by footballdude:

That's good for some stuff, but it might be a little more difficult to advertise stuff like hemmoroid cream.

LMAO. But I'd bet they would somehow find a way. A closeup of the tube but not its application.

NO to ESPN
@sbcglobal.net

NO to ESPN

Anon

Re: Content companies will find new ways protecting ad revenue

I remember the Preparation H commercial that was part of "The Big Bang Theory." The look on Penny's face was priceless.

jchambers28
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·Comcast XFINITY

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I think TWC and others will be needing this when dish is done with them. dish has been up in their ass for a while now.
Rastan
join:2007-04-25
Canada

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I'm not sure product placement in the tv program will be the end result. I think a more likely scenario is the use of mini commercials being shown, without sound, in a small box sort of like picture in picture, during the tv program. They will probably experiment with a few schemes and use a combination of annoying advertising tactics.

Voodoo288
Common Sense Dictates
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join:2002-08-19
Richmond, VA

Voodoo288

Premium Member

Re: Content companies will find new ways protecting ad revenue

You mean something similar to Blipverts?

»en.wikipedia.org/wiki/Blipvert

fifty nine
join:2002-09-25
Sussex, NJ

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said by Rastan:

I'm not sure product placement in the tv program will be the end result. I think a more likely scenario is the use of mini commercials being shown, without sound, in a small box sort of like picture in picture, during the tv program. They will probably experiment with a few schemes and use a combination of annoying advertising tactics.

Or they could just jack up your rates even more.
openbox9
Premium Member
join:2004-01-26
71144

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That will take annoying to a whole new level, driving even more consumers away from "prime time", IMHO. My guess is that this will lead to the end of "free" "worthwhile" OTA broadcast TV and we'll begin seeing more pay streams of content that used to be "free".

Hall
MVM
join:2000-04-28
Germantown, OH

Hall to FFH5

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Admittedly, if this catches on and DirecTV and the cablecos start doing it, the advertisers themselves are otherwise oblivious to this ad-skipping feature. A Dish customer, with a Hopper, who is also a Nielsen-counted household, still counts as having "watched" the commercials shown during episodes that they watch.

On the other hand, does anyone watch a Pepsi commercial, Doritos commercial, Ford commercial, etc go out and buy those products the next day ? Likely no.... Pepsi drinkers will keep drinking Pepsi, etc, etc, etc.

The advertisers and networks need to enter the 21st century: Commercial breaks are antiquated. As much as product-placement bugs me, it's probably the way things will go in the future.
sandman_1
join:2011-04-23
11111

1 edit

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Come on man, the commercials are still being watched the day of the show. How is skipping commercials after the fact a detriment to the content companies to the point that you think this will end all content programming? People have been skipping commercials since the VHS days. How is this any different? Last time I checked, the content companies were still raking in money from advertisers despite there being ad skipping devices in play for the last 30 years!

Read this comment on Ars Technica and thought it was very informing.

You are profoundly wrong. Networks can survive on carriage fees and residuals.

CNN is a great example. They have 100% of their budget (plus some profit) covered by carriage fees alone. Think about that fact every time you're subjected to one of their horribly obnoxious, intelligence insulting commercials. "HEADON! Apply directly to the head. HEADON!..."

Networks run ads for two reasons: profit, obviously but perhaps less obvious is that it saves them from having to produce content.

Go watch an old episode of Star Trek, they're 51+ minutes. Modern TV is now barely 42 minutes of "content" in every hour and even then that 42 minutes is counting credits, title sequence, bumpers, recaps and "coming next time." By the time you factor all of that in you get something closer to 36 minutes of content in each hour. You won't find many admitting it but networks love commercials because it saves them from producing content.


Consider the example of Adult Swim. While the big four are airing infomercials (that's 100% pure advertising) Adult Swim is airing actual content with highly reduced commercials, they even finance a good bit of original content. Alas, most are moving in the opposite direction. Why produce original content and actually fill the air waves with it when you can crank out a few reality shows or the same procedural they've made five-hundred times before, book-end it with a few hours of "late night" and then just drop into hours of infomercials.

It doesn't have to be this way. Networks could devote 55 minutes out of the hour to content leaving 1 minute ads between "acts" and still turn a profit, especially when you consider how valuable those ads would become. Heck, people might even watch them. The problem isn't ad skipping technology; the problem is the proliferation of ads by networks that have forgotten why they exist: content.

Skippy25
join:2000-09-13
Hazelwood, MO

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True, but it has already been ruled that companies can use products in shows/movies without permission as part of fair use.

However, they could encourage competitors to compete for placement thus earning money.

"Legal experts say fairly recent product placement practices, in which companies pay producers to use their products in TV and movie scenes, have mistakenly given corporations the idea that they can control the use of their products on camera.

Experts say studios are not obligated to get permission before featuring a product in their work.

Trademark laws "don't exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items," said Daniel Nazer, a resident fellow at Stanford Law School's Fair Use Project. "It is the case that often filmmakers get paid by companies to include their products. I think that's sort of led to a culture where they expect they'll have control. That's not a right the trademark law gives them."

Filmmakers, legal experts say, are protected under federal "fair use" privileges for use of trademark products without getting the OK of the rights holder. "

MSauk
MSauk
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join:2002-01-17
Sandy, UT

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said by FFH5:

If the courts won't stop ad skipping, ultimately the content companies will find a way to protect their ad revenue. If they don't, they will go out of business because their costs can't be totally covered by just selling the content. They need that ad revenue to make a profit. IMO the placement of product within the content's story line will be the end result. Long closeups of cans of Pepsi being used by the character in the show. Toothpaste with the product name prominently displayed for several seconds; characters using the product name in the dialog; etc; etc.

I have a novel idea, pay the overpriced actors/writers, whoever else, less money.

If you are making less money, pay the people you employ less money. Pretty simple economics

FFH5
Premium Member
join:2002-03-03
Tavistock NJ

FFH5

Premium Member

Re: Content companies will find new ways protecting ad revenue

said by MSauk:

I have a novel idea, pay the overpriced actors/writers, whoever else, less money.

If you are making less money, pay the people you employ less money. Pretty simple economics

I'm for that. But after 1 season of shows, popular actors won't work for less. They want to be paid a lot and would rather not work at all if they can't get rich.

MSauk
MSauk
Premium Member
join:2002-01-17
Sandy, UT

MSauk

Premium Member

Re: Content companies will find new ways protecting ad revenue

Eventually money will become an issue and guess who comes back wanting to work.....

KrK
Heavy Artillery For The Little Guy
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join:2000-01-17
Tulsa, OK

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The commercials are being watched. The retransmission fees are being paid by subscribers.

Skipping over commercials on old recordings doesn't cost anyone any revenue, at all.

FFH5
Premium Member
join:2002-03-03
Tavistock NJ

FFH5

Premium Member

Re: Content companies will find new ways protecting ad revenue

said by KrK:

The commercials are being watched.

By who? Nobody I know watches commercials anymore. They all DVR everything and FF thru commercials when they watch their recorded shows.

The only time I stumble across a commercial is during live football games. And even then I switch channels the second a commercial comes on.

KrK
Heavy Artillery For The Little Guy
Premium Member
join:2000-01-17
Tulsa, OK

KrK

Premium Member

Re: Content companies will find new ways protecting ad revenue

Anyone who watches live.

The fact DVR's have become so popular is people are so sick of commercials and the time wasted.

Can't blame that on Dish.

Nightshade
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join:2002-05-26
Salem, OR

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said by FFH5:

IMO the placement of product within the content's story line will be the end result.

They already do that but not overtly. One of the things I like to do for fun when watching a show is counting branded products that show up.

Yeah I know I'm weird. Blame that on my marketing professor who made that a homework assignment for the class.
talz13
join:2006-03-15
Avon, OH

talz13

Member

wow!

Golly gee, Dolly Gee? A judge that stands up for the consumer? Imagine that!
openbox9
Premium Member
join:2004-01-26
71144

openbox9

Premium Member

Re: wow!

Don't be disillusioned. This ruling isn't for or against consumers. It is simply Fox's inability to prove it is being harmed by this technology. I doubt this fight is done.

pnh102
Reptiles Are Cuddly And Pretty
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join:2002-05-02
Mount Airy, MD

pnh102

Premium Member

Dish Loses Later

I love this technology but how long before content companies stop doing business with Dish on account of this?
Angrychair
join:2000-09-20
Jacksonville, FL

Angrychair

Member

Re: Dish Loses Later

I'm sure they'll try to do a lot of saber rattling, but the fact of the matter is they want us watching their shows more than they want to screw over Dish. While I'm sure they'll try to get back at Dish network they'll just end up alienating the product (watchers) in the end.

fifty nine
join:2002-09-25
Sussex, NJ

fifty nine

Member

Re: Dish Loses Later

said by Angrychair:

I'm sure they'll try to do a lot of saber rattling, but the fact of the matter is they want us watching their shows more than they want to screw over Dish. While I'm sure they'll try to get back at Dish network they'll just end up alienating the product (watchers) in the end.

if no ads are being watched, why even bother showing customers who won't even know ads are there?

Content providers will either start charging Dish more or will pull their programming.
Angrychair
join:2000-09-20
Jacksonville, FL

Angrychair

Member

Re: Dish Loses Later

Because the networks charge by the ratings. If they're not even on the radar for 10% of households that only hurts the network's ability to charge exorbitant prices for advertising time.

The fact of the matter is the network doesn't care if you watch the commercials, they just care if they can sell them.

What this is really about is control - those in power never want to relinquish even the slightest amount of it. Period.

Hall
MVM
join:2000-04-28
Germantown, OH

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to pnh102
Don't hold me to this, but Dish is possibly the 3rd or 4th largest TV provider in the US, behind Comcast (#1) and DirecTV (#2). Time-Warner may be up there, hence why I say Dish is #3 or #4.

As mentioned above, they'd love to pull their channels from Dish but it would take away a lot of eyeballs (and in turn, advertising revenue). Also, this ad-skipping feature is only available on Dish's latest HD-DVR receiver, so for the time-being, the number of customers with this is rather small.

JRW2
R.I.P. Mom, Brian, Gary, Ziggy, Max.
Premium Member
join:2004-12-20
La La Land

JRW2

Premium Member

I can't speak for everyone but...

.. the reason I skip the commercials is...
1)There are too many of them.
2)Most are just stupid or insulting.

Basically, these are the only reasons I skip commercials...

I'm old enough to remember when commercial breaks were just long enough to make a QUICK run to the kitchen for a snack, or to grab a drink. Now, I could paint a room and wait for it to dry before the commercials stop.

seamore
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join:2009-11-02

seamore

Premium Member

Re: I can't speak for everyone but...

said by JRW2:

I'm old enough to remember when commercial breaks were just long enough to make a QUICK run to the kitchen for a snack, or to grab a drink. Now, I could paint a room and wait for it to dry before the commercials stop.

And during those medical (pharmaceutical) commercials, you can take a 2 week vacation to England and still be back in time before the show resumes.
Kearnstd
Space Elf
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join:2002-01-22
Mullica Hill, NJ

Kearnstd

Premium Member

Re: I can't speak for everyone but...

said by seamore:

said by JRW2:

I'm old enough to remember when commercial breaks were just long enough to make a QUICK run to the kitchen for a snack, or to grab a drink. Now, I could paint a room and wait for it to dry before the commercials stop.

And during those medical (pharmaceutical) commercials, you can take a 2 week vacation to England and still be back in time before the show resumes.

I swear no matter the channel or the content being shown I see more of the pharma ads these days than anything else.

Football for example used to be mostly frogs saying Budweiser between plays. Now its some pharma corp trying to convince people they have some horrible disease.

Pharma advertising should be illegal(and it is in most other western nations) It only exists to try and make people think they are sick.

aaronwt
Premium Member
join:2004-11-07
Woodbridge, VA
Asus RT-AX89

aaronwt

Premium Member

Re: I can't speak for everyone but...

said by Kearnstd:

said by seamore:

said by JRW2:

I'm old enough to remember when commercial breaks were just long enough to make a QUICK run to the kitchen for a snack, or to grab a drink. Now, I could paint a room and wait for it to dry before the commercials stop.

And during those medical (pharmaceutical) commercials, you can take a 2 week vacation to England and still be back in time before the show resumes.

I swear no matter the channel or the content being shown I see more of the pharma ads these days than anything else.

Football for example used to be mostly frogs saying Budweiser between plays. Now its some pharma corp trying to convince people they have some horrible disease.

Pharma advertising should be illegal(and it is in most other western nations) It only exists to try and make people think they are sick.

How do any of those ads make you think that you are sick? It's mostly just advertising a specific drug.

CylonRed
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quote:
Pharma advertising should be illegal(and it is in most other western nations) It only exists to try and make people think they are sick.
It was illegal for a good number of years till the industry paid enough people to have the law overturned a few years back.
Angrychair
join:2000-09-20
Jacksonville, FL

2 recommendations

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No kidding. When I was a child I can recall there literally being about 24 minutes of actual programming for every 30 minutes of air time. Now it's closer to 20 minutes.

I won't even watch anything live on AMC they have so many commercials. (it literally seems to be in about a 1:1 ratio. Watch 5 minutes of movie, watch 5 minutes of commercials)

I've redubbed their network "Always More Commercials".

•••
mogamer
join:2011-04-20
Royal Oak, MI

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said by JRW2:

.. the reason I skip the commercials is...
1)There are too many of them.
2)Most are just stupid or insulting.

Basically, these are the only reasons I skip commercials...

I'm old enough to remember when commercial breaks were just long enough to make a QUICK run to the kitchen for a snack, or to grab a drink. Now, I could paint a room and wait for it to dry before the commercials stop.

I was looking at some Mission Impossible episodes over at Amazon Prime and they were all around 51 minutes long. Now most hour long shows are around 42-44 minutes. And they wonder why people want to skip them. If the networks used common sense and not get greedy in the first place, this type of technology wouldn't have had much demand. Hell, they load up on commercials and still use some product placement. Production companies need to pay more attention to their costs and spend less time whining. Most actors and directors are interchangable anyway.

JRW2
R.I.P. Mom, Brian, Gary, Ziggy, Max.
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join:2004-12-20
La La Land

JRW2

Premium Member

Re: I can't speak for everyone but...

said by mogamer:

said by JRW2:

.. the reason I skip the commercials is...
1)There are too many of them.
2)Most are just stupid or insulting.

Basically, these are the only reasons I skip commercials...

I'm old enough to remember when commercial breaks were just long enough to make a QUICK run to the kitchen for a snack, or to grab a drink. Now, I could paint a room and wait for it to dry before the commercials stop.

I was looking at some Mission Impossible episodes over at Amazon Prime and they were all around 51 minutes long. Now most hour long shows are around 42-44 minutes. And they wonder why people want to skip them.

Yep, I've noticed that too. And it is a recent occurrence, as in like the last 20 years or so.

If the networks used common sense and not get greedy in the first place, this type of technology wouldn't have had much demand. Hell, they load up on commercials and still use some product placement. Production companies need to pay more attention to their costs and spend less time whining. Most actors and directors are interchangeable anyway.

My thoughts exactly, and this is a beast they created, like the often overpriced free agents in sports. They need to concentrate on improving the shows they put on, instead of all these scripted reality shows.

I've seen too many good shows canned that died because they refused to pay to get/keep the good writers.
MyDogHsFleas
Premium Member
join:2007-08-15
Austin, TX

MyDogHsFleas

Premium Member

Just a preliminary injunction, don't get all excited

To issue a preliminary injunction, a judge must assume that the defendant's arguments are valid, and still find irreparable harm to the plaintiff. This is a very high legal barrier, and the fact that the judge did not issue a preliminary injunction does not say that the plaintiffs won't win at trial.

•••

RARPSL
join:1999-12-08
Suffern, NY

RARPSL

Member

Ad Skipping not Ad Non-Recording

I fail to see how the use of Hopper differs from a normal DVR or VHS recording. In all these cases the TOTAL show is recorded and when viewed the commercial is (can be) skipped past. If Hopper did not record the Ads, then FOX might have a case but it DOES record the Ads. All the payment for Ads buys is the right to present them to the viewer NOT the insuring that the viewer will actually watch the Ad.
NeoandGeo
join:2003-05-10
Harrison, TN

NeoandGeo

Member

.

I wouldn't mind getting rid of all commercials and just have some product placement in the show. Not an obvious camera zoom to showcase anything or something intrusive. Just have a bottle of Dawn dish soap on the kitchen sink or a bag of Doritos on the counter.

geek
Mad Scientist at Work
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join:2002-01-07
Southbury, CT
TP-Link Archer C7

geek

Premium Member

Look for Side by Side Coming to You

»www.youtube.com/watch?v= ··· lfbFelsM


So look for your broadcast networks to start airing their ads side by side along with programming.

Bye bye ad skipping.

••••
rradina
join:2000-08-08
Chesterfield, MO

rradina

Member

What I Find Silly

While there are a lots of issues, feelings, opinions and several sides with which we can align ourselves, the fact that Hopper only works the day after the show airs is silly and almost hypocritical.

If fast-forward isn't disabled until the day after the show airs, what's the point of disabling Hopper until the next day? Hopper defenders are trying to convince everyone that it just makes it easier to do what folks already do (fast-forward through commercials). Why, then, disable it on the day the show airs?

kpfx
join:2005-10-28
San Antonio, TX

1 edit

kpfx

Member

Dish is going to shoot itself in the foot...

There's nothing illegal about Hopper in general (and I think it is very cool).... however...

When it's time for network renewals, there's also nothing that's going to keep Viacom/ Disney-ESPN/ NBC-Networks/ Turner/ Sinclair/ Discovery/ AMC Networks/ Etc... from asking for a major increase in their fees from Dish (more so than usual). I'll bet we'll see lots of demands for 100-200x increases in carrier fees and dropped channels on Dish due to disputes in the next year or two.

And the content companies would have a very good argument for justifying a major increase in fees should this get dragged out and fall into arbitration with Dish. All they have to do is prove that Hopper is decreasing the value or effectiveness of their advertising revenue with Dish customers when compared to a viewer on another provider.

Yes, we all hate commercials and would love to see all the channels go commercial-free. But if that happened, then every channel would cost $15-20/mo like HBO...

This is the kind of technology that a content provider would need to distance itself from. It would be better to have it roll out as a 3rd party option (like Myth TV or Slingbox).

•••
Body Count
join:2010-09-11
Columbus, OH
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Body Count

Member

VHS has been doing this for years

Like 15 years ago I used to own a VHS box that could automatically skip commercials. Somehow it could sense when the commercials started and ended. It was roughly 95% on target. Sometimes I had to backtrack because it went too long on the skip. But I never had to push anything. It skipped them automatically.

I remember I paid $199 for the damn thing when others were below the $100 mark. It was worth the extra money.

iHateAds
@telus.net

iHateAds

Anon

Ads, Ads, Ads Everywhere Ads.

Them poor advertizes, no one wants to see that junk anymore. lol As technology advances they will probably come up with a way to somehow get it into our heads just by walking next to a sign. *rolls eyes* lol

ipv456
@comcast.net

ipv456

Anon

WebHopper

If Dish's Hopper is allowed by the courts, could an ad skipping service be offered for the web by ISP's?
Kearnstd
Space Elf
Premium Member
join:2002-01-22
Mullica Hill, NJ

Kearnstd

Premium Member

Re: WebHopper

Nobody would pay for such a thing when Firefox and Adblock Plus are free.
elray
join:2000-12-16
Santa Monica, CA

elray

Member

Common Sense and Consumer Choice?

Sounds like ala carte.

Transmaster
Don't Blame Me I Voted For Bill and Opus
join:2001-06-20
Cheyenne, WY

Transmaster

Member

There is one commercial I would love to Hop over

On iHeart Radio Dish has an ad' for the Hopper DVR which consists of a bunch of people sitting on a couch screaming at the top of their lungs. I used to wake up with iHeart radio with my iPod Touch and earbuds thanks to this GD-SOB ad' I now listen to a WQXR through their App, much better anyway. good bye iHeart Radio your App is gone.