Judge Hands Fox and Dish a Draw

PASADENA, CALIF.—A federal judge has split the sheet on the spat between Fox and Dish over the satellite TV provider’s Hopper time- and place-shifting technologies.

“Plaintiffs’ motion for partial summary judgment is granted in part and denied in part and Defendants’ motion for summary judgment is granted in part and denied in part,” wrote Judge Dolly Gee of the U.S. District Court of the Central District of California. Gee ruled that portions of Dish’s technology violated its retransmission contract with Fox, while Dish won on most of the copyright tenets.

The ruling addresses a motion for summary judgment filed by Fox last August. It was the latest move a legal battle that started in 2012, when Dish introduced the Hopper set-top box. The Hopper featured PrimeTime Anytime technology for automatically recording primetime broadcast network programming, and AutoHop for skipping the commercials. Fox, NBC and CBS sued to make Dish disable AutoHop.

Judge Gee denied plaintiffs request for an injunction against Dish in November of 2012, and again in September of 2013 after Dish added Sling-powered Dish Anywhere and Hopper Transfers, which enabled live and recorded out-of-home viewing on mobile devices. Fox appealed both decisions to the Ninth Circuit Court of Appeals. That court upheld Gee’s rulings out of “limited and deferential” review, but Ninth Circuit Judge Sidney R. Thomas noted that Fox had a better chance proving breach of contract than copyright violation.

“The question of whether Dish has breached its contract with Fox is much closer,” he said in his July 2013 decision.

In this week’s ruling, Gee denied Fox’s charge that the Dish Anywhere streaming service infringed on the network’s copyright or breached a 2010 carriage contract amendment between the two. She further said that PrimeTime Anytime did not violate the original 2002 retransmission contract, as Fox contended.

Gee did grant partial summary judgment to Fox regarding Hopper Transfers and QA copies. Hopper Transfers allow Dish subscribers to copy recordings from their Hopper set-top box onto mobile devices and play them anywhere. QA, or “quality assurance” copies of networks’ primetime programming were made by Dish to watermark the commercials for skipping. Gee said these features violated 2002 retransmission agreement between Fox and Dish, and that the QA copies violated Fox’s exclusive right to reproduce its copyrighted content.

Gee found that Dish’s Anywhere, PrimeTimeAnytime, Autohop and Transfer features were in compliance with copyright law.

Both parties claimed victory.

“Fox welcomes the court’s ruling that Dish intentionally breached our contract in several areas, including the ‘Sling’ feature, and Hopper Transfers—Dish’s unauthorized mobile download feature,” a network spokesman said in a statement. “We’re also pleased the court found that Dish both infringed Fox’s copyrights and breached our contract when it made unauthorized copies of our programming as part of its AutoHop commercial-skipping service. 

“While we are still disappointed the court felt that PrimeTime Anytime and AutoHop do not violate our copyrights or contract, Dish has been largely disabling AutoHop anyway,” he said.

(Jon Lafayette ofB&Cnotes that Dish has agreed to disable AutoHop in recent carriage deals with Disney and CBS.)

Dish released a statement from R. Stanton Dodge, executive vice president and general counsel, who did not mention the contract violations.

“Dish is pleased that the Court has again sided with consumers by issuing a summary judgment decision upholding their rights under U.S. copyright law to use Slingbox technology and the AutoHop, PrimeTime Anytime and Transfers features of the Hopper Whole-Home HD DVR,” he said.

Gee concluded by denying Dish’s request for summary judgment “as to whether Fox has asserted any viable contract or copyright remedies but granted as to whether Fox is entitled to disgorgement of profits.”

July 24, 2014
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.

July 15, 2014
Court Again Denies Dish Hopper Injunction
he 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.

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, where the company figured it had a better shot based on the court’s 2008 ruling that Cablevision’s DVR did not violate copyright. But Dish countered too swiftly to suit Judge Laura Taylor Swain, who found it “improperly anticipatory,” and ruled that the copyright complaints could be heard in the California court, where Fox, NBC and CBS had filed.