Appeals Court Again Turns Aside Fox Bid to Bar Dish Network’s AutoHop
The 9th U.S. Circuit Court of Appeals denied Fox’s petition for a rehearing on its request for an injunction against Dish Network’s AutoHop and PrimeTime Anytime features of the Hopper DVR. In July, the court unanimously ruled that Fox didn’t successfully demonstrate its breach of contract claims against Dish (CD July 25 p6). PrimeTime Anytime allows consumers to record primetime shows on ABC, NBC, CBS and Fox, while AutoHop lets users play back the recordings without commercials starting the day after broadcast.
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The three-judge panel decided the district court didn’t abuse its discretion in saying the broadcaster failed to demonstrate “a likelihood of success on its copyright infringement and breach of contract claims regarding the television provider’s implementation of the commercial-skipping products,” said an opinion by Judge Sidney Thomas (http://1.usa.gov/1l6ZnBO). The panel also said Fox wasn’t successful in its claim of secondary infringement, it said. The pay-TV provider “showed that it was likely to succeed on its affirmative defense that the customers’ copying was a ‘fair use,'” it said.
"With this decision, the court continues to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop,” Dish general counsel Stanton Dodge said in a statement (http://bit.ly/1g9Mgh4). “This is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control."
Fox had argued that because Dish participates in the operation of the PrimeTime Anytime feature on a daily basis, Dish made the copies either alone or concurrently with its users, it said. But “operating a system used to make copies at the user’s command does not mean that the system operator, rather than the user, caused copies to be made,” the court said. Dish’s program “creates the copy only in response to the user’s command,” it said.
"We are disappointed in the decision but recognize that preliminary injunctions are rarely overturned on appeal,” a Fox spokesman said. “This ruling was based on a factual record from more than a year ago. ... Now that we have gathered more evidence, we are confident that we will ultimately prevail on all of our claims."
Commercial-skipping doesn’t implicate Fox’s copyright interest, the opinion said. Fox owns the copyrights to the TV programs, not to the ads aired in the commercial breaks, it said. “If recording an entire copyrighted program is a fair use, the fact that viewers do not watch the ads not copyrighted by Fox cannot transform the recording into a copyright violation.” The panel also said Dish didn’t breach its contract with Fox.
Fox could make an attempt to frame a petition for a Supreme Court review as a copyright/contract question on the merits, said Stifel Nicolaus analysts. But “we don’t know that Dish would agree to back such review, and so far the courts haven’t split on related litigation as they have on Aereo-type service to some extent,” they said in a research note. A Supreme Court review will be tough to obtain, “particularly on cases involving preliminary injunctions,” they said.