Skipping Commercials Wasnt Copyright Infringement Thirty Years Ago, and It Isnt NowCorynne McSherry Having lost their battle to shut the service down in federal district court, and an appeals court, the networks are looking for help from yet another appeals court. As we explain in an amicus brief filed today (with Public Knowledge and the Organization for Transformative Works), they should lose a third time. Heres three reasons why: 1. DISH isnt the one making copies of the TV shows. Copyright law is full of insane provisions, but one that does make sense is the requirement that you cant hold someone directly responsible for copyright infringement if that person didnt do the copying. Otherwise anyone who makes a machine that can used to make infringing and noninfringing copies would be on the hook for direct infringement. That matters because its very easy to show direct infringement: you just need to show that theres a copyrighted work that was copied (or distributed, etc.) without authorization. Indirect infringement, by contrast, has additional requirements, which means that innovators that market technologies that have both legal and illegal uses are not automatically liable if a customer breaks the law. 3. ABC cant show irreparable harm. ABC tried to persuade the district court to shut the Hopper service down while the litigation was pending. But that kind of court order, called a preliminary injunction, is only allowed if the service could cause irreparable harm to ABC, meaning harm that cant be compensated with money. But DISH is more than capable of compensating ABC for any lost revenue. (Color us skeptical that ABC actually suffered any such harm.) DISH is, of course, perfectly capable of defending its service in court. We filed this brief not so much to defend DISH, but to defend future innovators. The broadcasting networks are pushing a range of theories that, if adopted, would not only harm DISH and its customers, but also undermine and discourage future innovators who hope to serve and empower consumers. Stifling innovation in video technology goes against copyrights Constitutional purpose to promote the spread of knowledge. Its crucial to ensure that technology makers can develop and offer new tools and services without fear of massive penalties, or even being shut down, when those tools and services can be used in substantial, lawful ways and the provider doesnt have the sort of additional involvement in illegal uses that might subject it to indirect liability. Lets hope the Second Circuit agrees. Please visit and support the Electronic Frontier Foundation for digital freedom and privacy. 