Court Again Denies Dish Hopper Injunction

PASADENA, CALIF. — The judges who heard Fox lawyers appeal for an injunction against Dish’s Hopper last week didn’t buy the network’s argument. The U.S. Court of Appeals for the Ninth Circuit denied Fox’s request to reverse a denial of injunction from Judge Dolly Gee of the U.S. District Court for the Central District of California.

Richard Stone argued last Monday that Fox would suffer irreparable harm if Dish were allowed to continue marketing and enabling the Hopper, a set-top box that automatically can be programming to record broadcast TV programming in primetime and to skip the commercials. Judges Marsha S. Berzon, John T. Noonan, Jr., and Dana M. Sabraw were skeptical, given Dish could provide subscriber numbers for the Hopper and therefore estimates of damages could indeed be calculated.

The three-judge panel said the district court did not error in concluding that Fox did not demonstrate harm that could not be remedied by payment. “Irreparable harm” must be demonstrated for a preliminary injunction to be issued.

Dish introduced the Hopper at the 2012 Consumer Electronics Show and rolled it out in March of that year. Broadcasters sued in the California court in May, while Dish countersued within 24 hours in the U.S. District Court in Manhattan, which found in 2008 that Cablevision’s digital video recording set-top box did not violate network copyrights. Dish was rolling with the Cablevision precedent, but it countersued a little too quickly and was found to be “improperly anticipatory.” The case was left for the California courts to hash out.

Judge Sidney R. Thomas of the U.S. Court of Appeals for the Ninth Circuit previously affirmed Judge Gee’s denial of a preliminary injunction predicated on the question of whether or not the Hopper violated copyright. Both judges said Fox had a greater chance of proving breach of contract, given that ad-skipping specifically was prohibited in video-on-demand in the 2010 carriage contract between Fox and the satellite TV provider. Both judges indicated that Dish failed explain how the Hopper’s function was different from VOD.

The case remains in Gee’s court.

July 7, 2014,
Fox v. Dish Hopper: Court Skeptical of ‘Irreparable Damages
An attorney for Fox implored a trio of federal judges to kibosh Dish’s hopper, which can be set to automatically record primetime broadcast TV programming and skip the commercials. Richard Stone, arguing for Fox, said the district court that initially denied the injunction against Dish abused its discretion by departing from precedent set in previous streaming cases

June 25, 2014, “Broadcasters Prevail in Aereo
“Aereo performs petitioners works publicly within the meaning of the transmit clause of the Copyright Act,” Amy Howe said in Bloomberg’s live blog of the U.S. Supreme Court.

July 24, 2013, “Judge: Dish May Have Breached Fox Contract
Fox has more of a chance demonstrating that Dish breached its contract rather than violated copyright law with the Hopper, according to a court opinion released today.

November 12, 2012:Fox Appeals to Stop the Hop
Fox’s legal team wasted no time in appealing a federal judge’s decision last week to let Dish keep on skipping broadcast TV commercials.

November 8, 2012:Judge Lets Dish Keep On Hopping
In May, as the networks prepared to sue, news of those impending lawsuits leaked. Within 24 hours, Bloomberg said Dish countersued in U.S. District Court in Manhattan.