Dish Network said a U.S. District Court has said technology that the broadcast networks objected to is legal under copyright law or the Supreme Court’s recent Aereo ruling.
But the court--the U.S. District Court for the Central District of California--also held that Dish had breached the no-copying provision of its contract with Fox. So the decision provided some bragging rights for both sides. In fact, the decision was a mix of sumamry judgments granted and denied. The court granted five of Dish's claims, and rejected four. Fox was an even split--three granted, three denied.
The ruling, released Tuesday afternoon, covers Dish's PrimeTime Anywhere and AutoHop features, which record programming and plays it back without commercials. The court also ruled that Dish’s Slingbox technology, which moves programming from the set-top box to other devices, and its Transfers feature, which duplicates some recordings allowing users to play them back on a mobile phone or tablet without an Internet connection, did not violate copyright laws.
The court found that while the initial retranmission of Fox programming by Dish--via satellite--was a public performance, it concluded that the Dish Anywhere distribution of that content to other devices outside the home was not. And though that action represents a retransmission, it is the user doing the retransmitting, not Dish.
“This decision is the sixth in a string of victories in federal courts on both coasts for the American consumer related to our Hopper Whole-Home DVR platform. We are proud to have stood by their side in this important fight over fundamental rights of consumer choice and control,” said to R. Stanton Dodge, Dish executive VP and general counsel.
“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,” Dodge said. “Consumers are the winners today, as the Court sided with them on the key copyright issues in this case. This decision has far reaching significance, because it is the first to apply the Supreme Court's opinion in Aereo to other technology. We will continue to vigorously defend consumers’ rights to choice and control over their viewing experience.”
But it was hardly a slam dunk for Dish.
Fox, which sued Dish over the technology, noted that the court also ruled that Dish breached its contract in connection with parts of the Sling and Transfer technology.
The 2002 carriage agreement between Fox and Dish that was at issue said that Dish could not authorize the copying or retransmission of a TV station's signals except within the home. The court found it had authorized such use and violated that agreement.
"The plain language of the 2002 RTC Agreement prohibits all copying of Fox programming for any use other than private use in the home, absent Fox’s written permission," the court found. "Given our knowledge of current technologies, it may seem absurd that a contract
would allow subscribers to use DISH Anywhere on their mobile devices inside the home, but not the moment they step outside the home. Those are the terms, however, to which the parties agreed."
"Fox did not give DISH its consent to offer this service to subscribers for use outside the home," the court concluded. "To the extent DISH authorizes its users to retransmit Fox programming for use outside of the home without Fox’s consent, it has violated the No Copying Provision."
“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,” Fox said.
In recent deals with Disney and CBS, Dish has agreed to disable Autohop.
“Just as we learned in the Aereo case, protecting our content sometimes requires persistence and patience. This case is not, and has never been, about consumer rights or new technology. It’s always been about protecting creative works from being exploited without permission. Especially since DISH uses our programming to charge for a premium programming package and inflated DVR box fee,” Fox said.
Fox believes strongly in innovation and will work closely with distribution partners that respect our copyrights and comply with agreed-upon contract terms.
John Eggerton contributed to this report.
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Jon has been business editor of Broadcasting+Cable since 2010. He focuses on revenue-generating activities, including advertising and distribution, as well as executive intrigue and merger and acquisition activity. Just about any story is fair game, if a dollar sign can make its way into the article. Before B+C, Jon covered the industry for TVWeek, Cable World, Electronic Media, Advertising Age and The New York Post. A native New Yorker, Jon is hiding in plain sight in the suburbs of Chicago.