Despite another rejection last month of its last attempt to pull the plug on Dish Network’s Hopper, 21st Century Fox is stepping back into the legal fray in its battle against the ad-jumping DVR service. The broadcaster filed a brief with the Ninth Circuit Court of Appeals earlier this week requesting a brand new review of the July 24 ruling to be heard by all the court’s judges. The previous ruling shut down Fox’s aim for an injunction against the Hopper. Perhaps more importantly, the panel from the Ninth Circuit also said that the provider itself was not infringing on copyright because the services’ users are actually the ones making copies of the programming in question and that’s OK under fair use. For Fox, that was an error and raised the stakes even higher. “The panel announced two unprecedented rules of law that threaten the creation and licensing of television shows, movies, books, software, or other copyrighted content,” said the August 7 filing.
“The panel endorsed a model by which service providers who traffic in copyrighted works can shift liability for direct infringement to their customers, while at the same time obliterating the copyright owner’s ability to recover on secondary infringement claims. The panel’s new construct for evaluating copyright infringement not only is contrary to all existing law, it also threatens to destroy the ad-supported broadcast television industry, which — as the broad amicus support for Fox’s position illustrates — employs hundreds of thousands and provides quality content essentially free to millions of people,” said added the dense 22-page petition.
With this latest request, Fox may have reached the point where they are now truly grinding away in this satcaster case. Last month’s ruling in Dish’s favor rebuffed Fox’s notion that letting viewers essentially erase the ads in TV shows was a fatal blow to the broadcast industry’s business model. The Ninth Circuit said that Fox can’t claim copyright for the ads it runs on its stations because it doesn’t, in the court’s opinion, own them.
The late July ruling came out an appeal by the broadcaster after a previous District Court ruling in November of 2012 ended up in the satellite service provider’s favor. Then U.S. District Court Judge Judge Dolly Gee refused to block sales of the Hopper, even though she agreed with Fox that Dish has likely committed copyright infringement. Introduced in May of last year by Dish, the service lets subscribers to leap past commercials in programs that have been recorded off network TV the day before. CBS, NBC and Fox all filed copyright infringement suits almost immediately against Dish to get the service stopped.
Fox are represented by Richard Stone, Andrew Thomas, Amy Gallegos and David Singer of LA firm Jenner & Block and Paul Smith from the firm’s NYC office. Annette Hurst, William Molinski, E. Joshua Rosenkranz, Peter Bicks, Elyse Echtman, and Lisa Simpson from San Francisco’s Orrick, Herrington & Sutcliffe represent Dish Network in the case.
Deadline's Dominic Patten - tip him here.