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Ninth Circuit Won't Block Hopper Either

In a victory for Dish over Fox, the Ninth Circuit Court of Appeals has affirmed a lower court's September 2013 denial of a preliminary injunction against Dish’s Hopper DVR service.

“Today’s decision is the fifth in a string of victories for consumers related to our Hopper® Whole-Home DVR platform," said R. Stanton Dodge, DISH executive VP and general counsel. "DISH is pleased that the Court has sided again with consumer choice and control by rejecting Fox’s efforts to deny our customers access to the DISH Anywhere and Hopper Transfers features. Last year, the Ninth Circuit also rejected Fox’s attempt to block customers from using the AutoHop and PrimeTime Anytime features. We will continue to vigorously defend consumers’ right to choice and control over their viewing experience.”

"The district court denied Fox’s request for a preliminary injunction because it found that Fox had not shown a likelihood that Dish Network’s 'Dish Anywhere' and 'Hopper Transfers' technology would irreparably harm Fox before final adjudication," said the Ninth Circuit in declining to overturn the lower court. "Contrary to Fox’s arguments in this appeal, the district court committed no legal error and made no clearly erroneous factual findings in so ruling."

"While we are disappointed in today’s ruling, it is not unexpected, as the bar for a preliminary injunction is extremely high," said Fox in a statement. "The decision had nothing to do with the merits of our claim and does not address the fact that ‘DISH Anywhere’ is both illegal and in violation of our existing distribution agreement. We will now move forward and fully expect to prevail at trial."

The court held a hearing July 7. Fox had been trying to overturn that decision to deny the injunction and have the court enter one.

Fox argued the district court was wrong, and in fact abused its discretion, in not finding Dish's allegedly infringing AutoHop DVR service culpable of irreparable harm, and denying the injunction, as did the Ninth Circuit on appeal last January.

Dish's lawyer, Josh RosenKranz, argued it was "pretty clear" in the record that the "sling" technology introduced no new capabilities or was uniquely threatening. "There is no difference between the Sling box and the sling features at issue in this case." Dish said digital portability has been around for almost a decade, and Fox did not complain until now. Dish says that if Fox has not suffered any harms in the previous nine years that the technology was available, the court was well within its right not to grant an injunction based on irreparable harm.

Fox was looking to use broadcasters' recent victory in the Aereo case in the Supreme Court to buttress its argument, including pointing out that Dish had argued that it was merely an equipment provider, an Aereo argument that the Supremes rejected. It also pointed out the Supremes had reflected Aereo's argument (which it said was Dish's as well) that a performance was not public under the Copyright Act if each sub watches a unique stream.

Fox's lawyer, Richard Stone, argued that Aereo was also essentially about attaching a Slingbox to a DVR. But that got some pushback.

One judge countered that it was "completely different technology" and said that while that was the argument, "the Supreme Court has all sorts of caveats in the opinion about how this was about Aereo and nothing else and a lot of the 'nothing elses' seem to be pretty similar to Slingbox."

The district court has yet to rule on Fox's underyling challenge to Dish, with petitions for summary judgment due next month.