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Replay TV lost but Dish did not "lose in court". Replay TV lost because of the following:

1. Their "Commercial Skip" allowed commercials to be edited out of the playback. Thou can "Skip" but not Edit Out commercials, and it must be user initiated. I believe the controversy was that Replay TV edited out the commercials as a default, and it may have been a feature added a little later in order to compete with TiVo. This was in violation of copyright protections, at least for a DVR. "Skipping" vs. "Edit Out" is a murky legal question, so what Dish and TiVo do is NOT go there and just SKIP, which is CLEARLY allowed. Several VCR's of that same time of Replay TV (late 1990's into early 2000's) had Commercial Advance features, as well. I still own a number of them (Panasonic and JVC VCR's among them). They were and still are LEGAL. The VCR makers of Commercial Advance were never sued because their feature just "skipped" by way of speeding up the video to the point after the commercial break.

One might remember the old TiVo DVD burning DVR's. There was no way to edit out the commercials when burning to DVD, even though it was recorded onto an HDD. TiVo could have gone the DVD Recorder route, but I think TiVo always wanted to be seen as a "partner" with content owners and providers and did not want to alter any recordings the TiVo with DVD burner made. However, other DVD Recorders (some with DVR features) with HDD's were designed to edit out anything they want because it involves a process where the user must initiate and perform the edits, and DVD Recorder makers did not depend upon MSO's or content owners or providers as "partners," and DVD Recorder makers were never sued, even though they can edit out commercials from the HDD recordings and even burn those edited recordings to DVD without commercials. Those DVD Recorders were marketed and functioned as DVR's with program guide etc., but they were never sued.

2. Further, this Replay TV edited without commercial "copy" (or any recording of the Replay TV, for that matter) could be sent outside the premises via internet for other, remote Replay TV DVR's/users to view using the "Share" feature of the Replay TV. One has the right under Fair Use to record content and view it for "Private, Personal Use." We have absolutely no right to provide others with copies of those recordings. This is clearly a violation of copyrights and is outside of "Fair Use." Even today, you can legally rip CD's to an HDD, so long as you OWN or obtained those CD's in a legal manner, and those ripped copies are only for your "private, personal use." However, you MUST still own or posses those original CD's in order for the ripped copies to be legal, so don't auction off those old CD's you've ripped to HDD.

Copyright can be a foggy, murky mess. Also:

Dish did not lose anything because a trail never took place. The 9th Circuit's ruling upholding the lower court's DENIAL of a preliminary injunction requested by the broadcasters in regards to "Autohop" makes it clear the broadcasters were going to LOSE against Dish.

To make this short as possible (it is still gonna be kind of long), the 9th stated that the ONLY chance the broadcasters had of prevailing was the by invoking the clause in the retransmission contract about forbidding "unauthorized recordings" of their--the broadcasters--content. Dish did, in fact, make an "unauthorized" recording as part of the process for Autohop, but only for in-house quality control. However, the 9th Circuit stated that in order for the broadcasters to win on that point, the broadcasters would "have to prove damages, and since only a few Dish employees viewed this copy and only for the purposes of quality control, it would be highly unlikely for the broadcasters to prove loss or damages." stated the 9th Circuit.

FWIW, the 9th even cited that the copyrights for the commercials were NOT owned by the broadcasters, and so they could NOT argue that the Skipping of commercials violated the broadcasters copyrights of the programming. Look, in short the broadcasters KNEW THEY WERE GONNA LOSE FROM DAY ONE! Their lawyers must have told them so, as Dish's lawyers told them that Autohop was bullit-proof legal. So why did the broadcasters sue? They sued for LEVERAGE.

What ended up happening was that when the next broadcast retransmission contract came up for renewal, the broadcasters wanted Dish to abide by the C3 or C7 period when the playback of the commercial still counted as a "view" by the advertisers. Anything after the 3rd or 7th day of airing, the broadcasters didn't care what Dish did with the commercials because their value was ZERO. Further, if Dish would agree to this, the broadcaster would also agree drop the lawsuit against Dish for Autohop. And that is how it was resolved, out of court for each of the broadcasters one by one at retranmission renewal time.

The last hold out was Fox, who did not have a retransmission renewal date until much further into the legal process of the lawsuit, still perusing the suit against Dish, and the trial judge had just finished a hearing with Fox and Dish to determine if a trial should be held regarding one small point of law/claim by Fox, but I've forgotten what that point was (she had thrown out every other claim; this last point was all that was left to possibly litigate), but I do remember even the trial judge had commented that Fox's chances of prevailing were NOT at all good in the very least, but she was prepared to allow a trial so that Fox could have the opportunity to argue their case, however unlikely it was to go in their favor. HOWEVER, right at that point Fox's retransmission agreement with Dish was about to expire, but the renegotiations with Dish went well. Fox dropped their suit against Dish, and Rupert Murdoch still holds Charlie Ergen in high esteem, even though years earlier Dish did sue Rupert's company and Dish won--a lot of money and infrastructure.
To be contiued. . .

 

Continuing . . .

None of these moguls take this stuff personally; its all BUSINESS. Former TiVo CEO Tom Rogers and Dish Chairman and CEO Charlie Ergen maintained their friendship all through the infamous TiVo vs. Dish patent lawsuit. Dish waited it out long enough for TiVo to throw in the towel and decided to settle ("I don't want to wait for the Supreme Court," was TiVo CEO Tom Rogers' quote as to why he settled; TiVo was desperate for any money at that moment and really was about not be able to pay its legal bills to continue the fight), but it was still a good settlement for TiVo, just not the HUGE mother-lode "gun to the head" victory they wanted.

FWIW, this was all BUSINESS. All the broadcasters and Dish kissed and made up as the required renegotiations provided more for the broadcasters (including Disney desperately needing a first MVPD for its Longhorn Network, to get momentum rolling--Bob Iger and Charlie Ergen have been buddies since--along with Jeff Bezos and Reed Hastings being Charlie Ergen's pals for the last number of years), more VOD and digital rights for Dish, including providing the groundwork for deals for the then yet to be launched SlingTV service for "cable" channels owned by the parent companies of the big 4 broadcasters.

As for TiVo, none of the channels or copyright owners or providers of content have any leverage with TiVo, unlike the MVPD's who have to negotiate and obtain rights to programming on their services. TiVo just makes the DVR and does not operate an MVPD. Dish laid down the legal road for TiVo and its totally legal commercial skip (it was rumored that DircTV was waiting for the outcome of Broadcasters vs Dish to possibly launch its own commercial skipping feature, but that never came--instead, it was TiVo who went forward with a great commercial skip feature).

There really is nothing any of the channels or content owners of copyright can do to TiVo about its Commercial Skip feature because skipping commercials is absolutely LEGAL, and because of the history laid down by the broadcasters futile attempts to kill Autohop. Those legal challenges have already been tested to a sufficient degree with broadcasters vs Dish such that no one is going to waste money on EXPENSIVE legal fees against TiVo's commercial skip.

The methods Dish implemented to create a legally bullet-proof Autohop feature is to be certain that it be USER INITIATED. This means that such a feature is NOT on by default, but must be activated by the user. While TiVo does, indeed, have this feature on by default, Dish's requirement for the user to turn the feature ON is really a layer of--legal--precaution, to further strengthen the argument that people in the private, personal space of their domicile are active in their decision to turn on such a feature. Remember, Dish was first to such a feature and had to go through the legal contest first, as well, so that TiVo can have its commercial skip feature ON by default with high confidence that the programming owners/providers aren't going to take any action against TiVo for leaving commercial skip ON by default.

Further, Dish also requires that the user specifically CHOOSE to view the recording in the Autohop feature. This, again, is to further strengthen the notion that the decision to view recordings with Autohop is a USER INITIATED process. When a viewer selects to view recordings in Autohop mode, there is NOTHING more the viewer needs to do because the commercials are AUTOMATICALLY skipped without the user pushing any buttons or voicing any commands. With TiVo, we are not asked if we want to watch with commercial skip mode working: skip mode on playback is the default playback, and all we need to do is just press the correct button to have the DVR Skip the commercials--or skip the programming between the commercials, which is also kind of neat way of getting to a point in the programming faster.

So, in terms of copyright and DVR commercial skip, etc., the notions of USER INITIATED and PERSONAL and PRIVATE are key to having such features and devices LEGAL for an INDIVIDUALS' "Fair Use." These factors are why it is LEGAL for an individual to record content, but NOT a cable company to record all the content for you to choose what to watch (I think that was a CableVision scheme--to have like 7 days of programming from all channels available for subscribers to watch if they missed some show that week). These factors are why it is also illegal for a cable company to make only ONE recording of a show to be shared by all subscribers who set a DVR timer for that show on "cloud" DVR or DVR on the cable co server. That method was ruled illegal. So, now the cable co--or virtual MVPD like SlingTV or DirecTVNOW, must provide--for "cloud" recording or recording to servers of an MSO--a portion of memory that is for the EXCLUSIVE use of the individual to record and STORE their shows, and so hundreds or even thousands of individual recordings of the very same show must be made onto and left on that portion of server that is accessed exclusively by the subscriber, AND the consumer MUST initiate or "set" all those "timers" or instructions to record whatever TV show or movie.

User Initiated; Personal and Private. Why a Slingbox is bullet-proof legal. Aereo struck down because SCOTUS was saying you needed to PAY for the content. That ruling was wrong. It is up to Congress to outlaw Aereo. EVERY other court in the US stated that Aereo met the tests no matter how unethical the service may have been to some observers.

Lastly, what Dish does, and we can infer what TiVo does--while not necessarily identical--in order to LEGALLY achieve its Autohop feature as detailed in the 9th Curcuit's ruling upholding the lower courts denial of preliminary injunction of Autohop feature:

A recording is made of the big 4 network's Prime Time programming. A small number of real human beings (about 7 people, I think) who watch the content, manually marks the points of a commercial break's beginning and end points for the entire block. Human beings are used by Dish--and not automation--because it is VITAL that there be ABSOLUTELY no error that can in any way accidentally cut off ANY portion of the copyright programming because that WOULD, INDEED, be a violation of copyright actionable by the broadcasters and likley be to upheld in court. The results of the markings are then viewed/played back to VERIFY that only the COMMERCIALS and absolutely none of the programming will be Autohopped upon playback at the subscribers home. This process takes a little time, and this is why the Autohopped markers are not part of the recording until at least something like 2AM the next day--although since then C3 and C7 delays are in effect--just a few hours after Prime-Time has ended.

That is Dish's method, and the process is probably a bit "over-designed" but Dish wants protective layers in the process to make accidental violation of copyright a very difficult accident to occur to protect itself from court action. It is also interesting that when watching a recording with Autohop, there is ALWAYS one second or so of the commercial before Autohop skips and just the last second or so of a commercial when it comes OUT of skipping mode. I tend to think this is a SAFETY pad for the markings for Dish Autohop so that the markers will NEVER cut off any of the copyright programming. Better safe than sorry.

I doubt TiVo does it exactly as Dish, but the process must be at least very similar for TiVo. I have to think that TiVo uses real people, too, to avoid any computer error and cut-off copyright programming content, but maybe they take the chance with automation. I really don't know. But then again, Dish has specific contracts that forbid it to cut-off any of the programming as a condition of retransmission--and for BROADCAST stations it is ILLEGAL to alter a retransmission of ANY broadcast station, but skipping (not editing or any in way "altering" its stream to the home) commercials is legal. And Since programmers have no leverage with TiVo, the TiVo DVR can offer commercial skip with minimal delay. TiVo can also have its commercial skip feature be a default feature without fear of programmers getting upset and taking away programming because, again, TiVo does not OBTAIN programming, it merely RECORDS it.

So there is more latitude for TiVo in such respects and it probably could cut-off copyright programming because it is not bound by any retransmission contract expressly forbidding that because, legally speaking, TiVo is more like a DVR Recorder: a 3rd party box that records "stuff" while TiVo records TV signals exclusively, TiVo is not bound to take any particular care when recording OTA, and for recording cable TV, that is the MSO's problem, unless it is a TiVo product ISSUED by an MSO. Then TiVo must comply with MSO limitations. As for CCI, that's the MSO's problem, but since TiVo is Cable Card compliant, there really isn't a way for TiVo to circumvent that, and TiVo would certainly NOT want to because it is better to maintain good relations with MSO's. TiVo has always chosen that path.

I just felt I had to respond, but I also felt that as I was writing, it all required explanation, and I don't manage to come to this forum as often as I like, so I felt I should answer any responses "ahead of time" should questions linger. I hope I was correct in that presumption.

 

Absolutely agree. Every MSO or sat service has their "DVR Fee" as well, which I think also funds or offsets all the associated costs of the DVR service any MSO or satellite company provides. Subscribers on cable or satellite who are using NON-DVR boxes to view TV are NOT charged a DVR Fee. That seems fair. Also, I would add that even for TiVo to some degree, but certainly the case for cable and satellite, is the cost of replacing a broken DVR free of charges, while TiVO may require some additional fee (although Dish does charge shipping if a subscriber does NOT have Protection Plan).

FWIW, Dish (and I presume DirecTV, as well) has MASSIVE DVR RMA centers with a lot of employees who take in and process failed DVR's (multiple MILLIONS of DVR's in Dish homes, usually just the HDD gets old), who test HDD's, replace HDD's, completely clean-up, remove blemishes, etc. to look like new before sending out as replacements (Dish sends out a replacement DVR BEFORE the subscriber sends back the broken DVR). I think there is a YouTube video of it, but one can see and appreciate the costs of such a center.

Yes, a legitimate fee charged by TiVo. I just wish it were lower, but seeing how that is really the ONLY revenue to meet the costs of providing the TiVo SERVICE, even after a All-In plan becomes nothing but a cost to TiVo, I can understand its high cost to a monthly and annual subscriber. But on the other hand, cable and satellite DVR Fees have gone up, too. They can use some of the money made on programming subscriptions to cover some of the DVR costs, but probably not by much.

 

Pricing is set (independent of costs) as the optimal value to maximize total profit (revenue - costs) resulting in either retained earnings to be allocated to future R&D or returned to the shareholders.

Textbook answer applies here just as with nearly every other company.

 

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A very valid point. Lifetime (now known as "All-in") was probably a mistake for a company that has real ongoing costs associated with the service. Lifetime service is, in large part, subsidized by monthly and annual subscribers.

 

Any idea on how much more a lifetime subscription would cost if not for the monthly and annual subscribers?

 

...I'd like to drop this thread...

 

Click here

 

Probably zero, since if the ONLY did lifetime service they would be out of business by now.

 

I enjoyed that little bit of passive-aggressive helpfulness.

Just keep it up, pfiagra! (See what I did there?)

 

What are these monthly fees you talk about? I don't see any monthly fees on my bank account for either of my Tivo's

 

I could not watch as much news as I could without QM. Also Late Night and Boring parts of some reality shows. It works fine and is TRULY GREAT!!! Yes it has the audio cutout sometimes when coming out of FF or REW, but a quick press of the Replay button fixes it. Do any other DVR's have this feature?

How LAZY are people that need auto skip????????????

The Guide (and SM availability) kinda SUCKS lately.

How long have you been with Tivo, Inc anyway???

PS, I love Tivo, Inc complaint threads!!!

 

By any chance, have you ever stayed at a Holiday Inn Express?

 

really a good drive-by.

 

Some of us don't plant our butts in the recliner with the remote in hand to watch TV. We move around the house, cooking, cleaning, writing code, helping the kids with homework, whatever. How SAD that some people that can't see past their own limited experience.

Otherwise I agree with your post completely.

 

No thanks. If I had a nickle for every time......