In an opinion yesterday, Judge Swain refused to enjoin Dish Network’s technology allowing viewers to record all prime time network shows (called “Prime Time Anytime” or “PTAT”) and then skip commercials with the touch of a button, instead of fast‑forwarding (called “Auto Hop”). Judge Swain ruled that the combination of these features did not constitute direct copyright infringement:

DISH has no control over which programs will be shown on those networks or in what order, just as it has no control over which of its subscribers choose to copy those programs.  The DISH subscriber must decide if he or she wants to use the PTAT feature and the subscriber must “enable” PTAT before the Hopper will record any programs.  The DISH subscriber selects which of the networks’ primetime offerings to record and which nights he or she wants to record and, once the subscriber enables the PTAT, the recordings are saved on the subscriber’s personal hard drive on the Hopper, rather than at DISH headquarters. The subscribers also decide whether their copies reside on their individual Hopper devices from two to eight days, and can decide if they want to keep certain programs longer. DISH does set a default deletion schedule for PTAT/Hopper recordings; such control over the retention of a recording does not, however, make DISH the creator of the recording Accordingly, ABC has failed to demonstrate likelihood of success on its direct copying cause of action because the evidentiary record indicates, and the Court finds, that the consumer makes the copy. There is thus no factual basis upon which DISH could be found liable for direct infringement of ABC’s right of reproduction.

She ruled Dish Network was not likely liable for secondary infringement because a viewer’s non-commercial recording is “fair use.” Our prior post on the case is here.