The grinding legal struggle between Fox and Dish Network over the satcaster’s ad-skipping AutoHop and Primetime Anywhere features just became a heightened war of words. “Dish’s colorful allusions, over-the-top mockery, and baseless accusations that Fox is attempting to relitigate the 30-year-old Sony case have one purpose: to draw the Court’s attention away from the fact that Dish is directly infringing Fox’s copyrights and breaching its license agreement with Fox,” said Fox in a brief (read it here) filed Thursday. The reply by Fox earlier this week is in response to a brief Dish filed on January 17 with the Ninth Circuit. In that filing, Dish claimed that Fox’s appeal over the November denial of its request for a preliminary injunction against the features was just a recycling of the old Betamax court battles of the Eighties. Dish also argued that, like the Supreme Court’s 1984 decision in Sony Corp. of America v. University City Studios Inc., its AutoHop features is protected by fair use and limiting it would effectively render any use of DVRs illegal. Fox, who filed its appeal on November 9, doesn’t see it like that. “Reversing the district court would not, as Dish threatens, imperil DVRs; it would simply restore the status quo,” says the brief.
CBS is going backwards to try to take its legal battle with Dish Network forward. The network today filed paperwork (read it here) in federal court in the hopes of pursuing new fraudulent concealment and inducement counterclaims against Dish and its AutoHop service. CBS says Tuesday that it would have never signed a January 2012 Retransmission Agreement with Dish if it had known the broadcast satellite provider intended to introduce the ad-skipping AutoHop feature to its subscribers later in the year. In fact, the network includes emails from its execs to Dish during the late 2011 negotiations stating that CBS was not “looking to have this arrangement include new businesses that DISH may choose to enter into in the future, whether they be Netflix-like businesses, new mobile services, or other new platforms.” By Dish not saying anything about the proposed Autohop feature after this exchange, CBS says the company committed deceit.
“While unsettling, this is sometimes necessary,” Dish Network‘s Joe Clayton said at an International CES presentation to unveil his company’s new DVR and mobile viewing technology. With his company’s programming costs growing at double-digit rates, “we as an industry are rapidly approaching a tipping point. How many customers are willing to pay over $100 a month for video content? I don’t know. But we’ll soon see.” Clayton also chided broadcasters who sued his company last year after it introduced its Hopper DVR with a feature that automatically jumps past ads in recorded shows. If it’s a crime to jump past ads then “I guess we’re just a nation of outlaws,” he says. But his address was primarily designed to introduce an updated DVR: Hopper with Sling. It likely will also irk programmers by transmitting their shows — both live and recorded on the DVR — to users’ mobile devices. It also can transfer shows to iPads. The company plans what it calls a “massive” marketing campaign that says Hopper with Sling redefines the in-home and out-of-home viewing experience.
Fox went back to federal court this week seeking an injunction against Dish Network and its AutoHop DVR. Fox Broadcasting and 20th Century Fox argued in a filing with the 9th Circuit Court of Appeals that because the lower District Court Judge Dolly Gee agreed with Fox‘s contention that Dish was infringing its copyright on TV programming, Gee should have also granted a temporary injunction against Dish. (Read Fox’s filing here.) Fox noted “The district court found that Dish infringes Fox’s copyrights when it copies Fox programs every night to enable AutoHop’s ad-skipping functionality, and that such ad-skipping functionality irreparably harms Fox.” Despite this, Fox said “the district court held that this irreparable harm did not count because it stemmed from the ad skipping, not directly from the infringing copies that made the ad skipping possible.” Fox contends the district court erred and should be ordered to grant Fox the preliminary injunction. Fox is represented by Jenner & Block.
The broadcaster filed an appeal today (read it here) against the denial of its request for a preliminary injunction against Dish Network‘s ad-skipping AutoHop and Primetime Anywhere features. Fox’s heavily redacted filing now moves the matter from U.S. District Court to the U.S. Court of Appeals for the Ninth District. On Tuesday in a sealed ruling, Judge Dolly Gee refused Fox’s attempt to shut the ad-skipping features down as the two sides head to trial later this year. In another side to the Autohop legal battle, Judge Gee yesterday refused Dish’s attempt to have NBC’s contract claims against them dismissed. As well as Fox, CBS and NBC also filed copyright infringement suits against Dish. The satcaster was hoping Gee would let them have the court venue moved to New York. Dish filed in federal court there in May seeking a judgment on whether its ad-skipping feature is legal.
UPDATE, 3:35 PM: DISH Network released the following statement today in regards to the court ruling denying Fox’s request for a preliminary injunction against DISH’s ad-skipping Autohop and Primetime Anywhere features:
Today’s ruling is a victory for common sense and customer choice. DISH is gratified that the Court has sided with consumer choice and control by rejecting Fox’s efforts to deny our customers access to PrimeTime Anytime and AutoHop — key features of the Hopper Whole-Home DVR. The ruling underscores the U.S. Supreme Court’s ‘Betamax’ decision, with the court confirming a consumer’s right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose. We look forward to vigorously defending AutoHop and Primetime Anytime, and the choice and control those features deliver our subscribers. – DISH Executive Vice President and General Counsel, R. Stanton Dodge
PREVIOUSLY, 1:59 PM: A U.S. District Court judge yesterday denied Fox’s request for a preliminary injunction that would shut down Dish Network’s ad-skipping AutoHop and Primetime Anytime features, Deadline has confirmed. However, Judge Dolly Gee did agree with Fox that Dish has likely committed copyright infringement and broken the contract between the two companies in making copies of Fox programming for alleged quality assurance. The ruling was sealed so both sides could redact confidential trade information. Notice of the ruling appeared on the court docket today. Fox had the following statement on the ruling:
The court denied Fox’s request for a preliminary injunction. But we are gratified the court found the copies DISH makes for its AutoHop service constitute copyright infringement and breach the parties’ contract. We are disappointed the court erred in finding that Fox’s damages were not suitable for a preliminary injunction. We intend to appeal that portion of the court’s decision, as well as the court’s separate findings concerning the PrimeTime Anytime service. DISH is marketing and benefitting from an unauthorized VOD service that illegally copies FOX’s valuable programming.
The decision on the broadcaster’s petition comes after the parties argued their respective points of view in front of Gee on September 21. Introduced in May by Dish, AutoHop allows subscribers to leap past commercials in programs that have been recorded off network TV the day before. CBS, NBC and Fox have all filed copyright infringement suits against Dish to get the service stopped.
Fox Broadcasting has asked for a preliminary federal injunction against Dish Network‘s Primetime Antime DVR service with AutoHop commercial skipping feature. Fox filed a request (read it here) with the federal court for the Central District of California to block Dish “from further infringement of Fox’s copyrighted television programs identified in the Complaint in this action and from further breaches of Dish’s retransmission consent agreements with Fox.” The court has set a hearing on Fox’s request for September 21. In what Fox and the other networks in the dispute consider proof that the primary purpose of the Primetime Anytime and AutoHop is copyright infringement, Dish earlier this week modified its own litigation and the device’s software to emphasize “optional” recording and commercial-skipping instead the original wording “automatic.” In addition to Fox the other broadcast networks ABC, CBS and NBC are fighting Dish in court on multiple fronts. Dish’s view is that the satcaster and its customers already pay for the right to watch the networks’ programming with or without commercials.