By Curtis Skinner
NEW YORK, Feb 20 (Reuters) - An attorney for Dish Network LLC told a New York federal court on Thursday that ABC Inc has no more right to make consumers watch commercials than the New York Times has to make readers view the pullout adds in the Sunday paper.
In the 2nd U.S. Circuit Court of Appeals, ABC has appealed a New York district court in September that allowed Dish to keep selling its digital video-recording device, or DVR, The Hopper.
ABC, CBS Corp, NBC Universal Media LLC and the Fox Entertainment Group Inc have sued Dish in various New York and California courts for violating copyright by letting users make and view unauthorized copies of their programming.
Introduced in 2012, The Hopper allows Dish subscribers to automatically record prime-time shows from the four major networks and then skip commercials during those programs 24 hours later.
"Dish is not agnostic about the content being copied," ABC attorney Thomas Hentoff of Williams & Connolly said during oral arguments on Thursday. "They've chosen the most valuable programming from the major TV networks. Dish's service undermines nearly every source of revenue ABC can derive from its newest prime-time TV programming."
Dish attorney Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, meanwhile, said the technology simply lets viewers "time-shift" their TV watching the way they have been able to do for decades with devices like videocassette recorders.
"Dish is not the one making these copies, the consumers are," he said. "ABC has no more right to make consumers watch commercials than the New York Times has to make readers view the pullout adds in the Sunday paper."
The lawsuit began in May 2012 when Dish, threatened with lawsuits by the major broadcasters, sought a judgment in the Manhattan district court allowing continued sales of The Hopper.
CBS, NBC and Fox filed lawsuits in California alleging copyright infringement, while ABC countersued Dish in the New York court. In September, U.S. District Judge Laura Swain denied ABC's request to stop Hopper sales, which led to the appeal.
The case is still in discovery and trial dates are being coordinated with the related Fox and NBC cases in California. The CBS case has since moved to U.S. District court in New York.
The case is In Re Autohop Litigation, U.S. 2nd Circuit Court of Appeals, No. 13-3573.
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