TiVo Roamio v. Hopper With Sling: A conundrum for TV networks

As of today, users of TiVo’s Roamio Plus DVRs will be able to stream live and recorded TV content from the set-top box to their iOS smartphones and tablets when connected to a WiFi network. Android support and streaming via 4G/LTE is scheduled to roll out sometime in 2014.

According to the press release, the “TiVo Roamio combines the functionality of a DVR, Apple TV, Roku and Slingbox.” Up to now, the only way to get all that functionality in a single device was with Dish Network’s proprietary Hopper With Sling DVR.

If the networks had their way, however, you wouldn’t be able to get your hands on a Hopper With Sling. The Hopper With Sling is currently the subject of copyright infringement litigation brought by Fox Broadcasting in federal court in California.

In its petition for a preliminary injunction barring Dish from offering the Hopper With Sling, Fox argued, “Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox’s live broadcast signal over the Internet or to make copies of Fox programs to watch ‘on the go,’ because Dish does not have the right to offer these services to its subscribers in the first place.”

The request for an injunction was denied by the court last month. But the litigation continues, raising the question of whether Fox (or another network) might try to block the TiVo Roamio.

There’s an important distinction between the two devices, however, that likely changes the legal calculus. Fox’s complaint against Dish turns specifically on whether Dish has the rights under its existing in-home distribution agreement with Fox also to stream the content over the internet to subscribers outside their homes. In the case of TiVo’s Roamio, there is no service provider to sue and there are no distribution agreements to argue over. Roamio users have bought the devices themselves, and if anyone is doing the streaming the consumer is, not the cable or satellite provider they may subscribe to.

The legal question with the TiVo Roamio, then, if there even is one, is whether consumers have the right to place-shift content they have paid for (or are entitled to receive) themselves.

The question is a fraught one for the networks. Fox has a parallel lawsuit going against Dish over the Auto-Hop DVR, which can be set to automatically skip the commercials during playback. Fox is also part of the group of broadcasters that have sued Aereo over its system to enable consumers to stream broadcast content to mobile devices using tiny antennas. In both of those cases, courts have ruled that, even though service providers have provided the equipment at issue, it is consumers who are effecting the actual recording and streaming, as they are entitled to do under the applicable fair use rules.

What to do, then, about Roamio? If the networks do nothing, they’re effectively conceding that consumers do, indeed, have the right to record and stream TV content they have legally acquired — a position that could weaken their hand against Aereo, FilmOn X and AutoHop by turning those cases largely into technical disputes over the design of those services. If they try to block the Roamio, however, the courts by now have a fair amount of case law pointing toward consumers’ fair use right to time-shift and place-shift TV.

Not an easy call.