Fox once again failed to persuade a court to stop the No. 2 satellite company from helping its subscribers stream TV shows from their home DVRs. The U.S. Court of Appeals in San Francisco upheld a 2013 District Court decision that rejected Fox’s motion for a preliminary injunction while it debates whether it’s legal for Dish customers to use their Hopper DVRs to transfer shows to different rooms, or stream them to smartphones, tablets and other digital devices. The broadcaster said it would lose advertising and negotiating clout if the service continued while the trial proceeds. The District Court said Fox had failed to prove its point. Appeals court Judge Dolly Gee says today that the lower court ”committed no legal error and made no clearly erroneous factual findings in so ruling.”
Fox says that while it’s “disappointed” in the ruling “it is not unexpected, as the bar for a preliminary injunction is extremely high.” The company adds that it “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.”
But Dish General Counsel R. Stanton Dodge trumpeted “the fifth in a string of victories for consumers” in challenges to its Hopper DVR. “We will continue to vigorously defend consumers’ right to choice and control over their viewing experience.” Sling introduced its streaming technology to the consumer market in 2005.
The Ninth Circuit Court of Appeals may have nixed Fox again today in its efforts to shut down Dish Network’s ad-zapping DVR service, but the network still sees victory down the line. “We are disappointed in the decision but recognize that preliminary injunctions are rarely overturned on appeal,” said a Fox Networks Group spokesperson after the court today unanimously rejected Fox’s petition of last August. “That said, the 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.” The case goes on in trial court. In the meantime, Dish, which has had a good run with the courts on the Hopper issue of late, once again wrapped itself in the flag of standing up for consumers. “With this decision, the Court continues to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop — key features of the Hopper Whole-Home HD DVR,” the satcaster’s General Counsel R. Stanton Dodge said of one of the many broadcaster suits against his company. “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.”
Dish Network Ups Hopper DVR Capacity To Record 8 Shows Simultaneously
ABC Blasts Dish Network’ Ad-Zapping DVD In Injunction Appeal
Read More »
First it was New York, then later Boston and today a new battlefield opened in the legal war between the Barry Diller-backed streaming service and broadcasters. Less than two months after its debut in Utah, Fox Broadcasting along with local stations KSTU-TV, KUTV-TV and KMYU-TV filed a copyright infringement suit (read it here) against Aereo in federal court to get the service shut down. The new jury-demanding suit seeks a preliminary injunction against Aereo and it wants unspecified statutory damages, as well as legal fees and whatever else the court will give the plaintiffs. Launched in NYC last year and already in several other cities across the nation, the much-sued Aereo premiered in Utah on August 19. “Aereo has not been authorized by any of the Plaintiffs to retransmit their copyrighted programming. Even though Aereo is in the business of selling access to the programming broadcast on KSTU, KUTV, KMYU, and other local stations, it pays nothing to the copyright owners. Legitimate retransmission services like cable and satellite companies, in contrast, obtain licenses to retransmit broadcast signals to their subscribers,” says the three-count 16-page filing. Read More »
For the second time in less than a week, Dish Network is claiming legal victory against one of the big broadcasters. On September 18th, it was ABC, today it’s Fox. A federal judge Monday spared the satellite provider the preliminary injunction requested by Fox against its ad-jumping Hopper DVR services. As has become the norm in the various Hopper cases, the ruling by Judge Dolly M. Gee was filed under seal for the time being so confidential and proprietary info could be stripped out. While Gee denied the injunction she did indicate to the parties’ lawyers that she believed Fox’s case had merit and could be compensated with damages rather than agreeing to the broadcaster’s motion. “We disagree that the harms caused by Dish’s infringing services are completely compensable by damages, and as a result we are looking at all options. We will file a response in due course,” a Fox spokesperson told me. Dish took a much less nuanced approach in responding to Monday’s decision. “Today’s decision is the fourth in a string of victories for consumers related to our Hopper® Whole-Home DVR platform. 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. We will continue to vigorously defend consumers’ right to choice and control over their viewing experience,” said Dish’s EVP and general counsel R. Stanton Dodge in a statement Monday. Today’s ruling comes from a hearing on the matter held back on April 19th.
Read More »
UPDATE, 9:24 AM: Fox put out a statement today in response to the trade libel lawsuit FilmOn filed against them Thursday:
Although we have not seen the suit we welcome the opportunity to let the court determine the legitimacy of Mr. David’s business practices.
PREVIOUSLY, 5:05 PM: FilmOn has countersued Fox Broadcasting Co. and the Fox Television Stations in their continuing legal fight over streaming network programming to mobile devices. FilmOn says it is the licenser and partner in the streaming TV technology behind Alki David’s BarryDriller.com and Aereokiller. The technology uses “mini-antennas” to transmit TV signals to mobile devices. This is similar to the process used by Barry Diller’s Aereo service. ABC, CBS, NBC and Fox have already sued Aereokiller separately. The countersuit filed today in Los Angeles Superior Court (read it here) charges that “Fox has separated from the coalition of other networks … and taken steps — legal and illegal — to put FilmOn out of business”.
Related: Broadcasters Ask Court To Block Aereo
Accusing Fox of trade libel, FilmOn’s suit claims that Fox’s Los Angeles counsel contacted FilmOn’s various potential business partners to “inform” them that FilmOn’s apps violate a federal court injunction against distribution of streaming apps. The potential partners include Apple, Google and Microsoft. Additionally the suit says Fox’s counsel told the potential partners that distribution of the apps would be aiding copyright infringement. FilmOn asserts “Fox knew that these statements were false” … Read More »
Despite its best legal efforts today, Fox didn’t get a judge to shut down Dish Network’s ad-skipping Autohop and Primetime Anytime features. After hearing arguments from both sides, federal Judge Dolly Gee said she would take the broadcaster’s preliminary injunction request under consideration. A decision could come anytime starting next week. For Fox, that injunction cannot come soon enough. “This is going to grow like a brush fire if it is not stopped,” said Fox lawyer Richard Stone to the court today. 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. Twentieth Century Fox Films Corp. and Fox Television Holdings’ lawyer argued in documents filed on August 22 (read it here) that the product is in “violation of the express terms and conditions of its contracts with Fox and federal copyright law.”
RELATED: Broadcasters Cleared To Challenge Dish Networks’ Ad-Zipping DVR In California
Dish lawyers contend that part of the issue is Fox and other broadcasters are resisting new technology just the way the VCR and later the DVR were initially resisted by the industry. “The question is it somehow unlawful to do something to make it easier for the consumer?” said Annette Hurst. “You can’t come in here and take away the rights consumers have had for … Read More »
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.
Because of the phone-hacking and bribery scandal plaguing News Corp’s British newspaper publishing subsidiary, a public interest group has filed a petition asking the Federal Communications Commission to deny broadcast license renewal to three Fox TV stations. Licenses of the three Fox Broadcasting Co. owned-and-operated stations are scheduled to expire in October. The stations are WTTG and WDCA in Washington, D.C., and WUTB in Baltimore. The Citizens for Responsibility and Ethics in Washington filed its petition today, and you can read it here. The group calls for a public hearing to determine whether Fox, a U.S. subsidiary of News Corp, should remain a licensee. The interest group in May petitioned the FCC to revoke all 27 of Fox’s broadcast licenses, but the FCC has not responded. The agency has given no indications that it has any intention of looking into whether News Corp.’s problems in Great Britain are relevant to its U.S. TV businesses. CREW’s argument is based partly on a clause in the Communications Act that licenses can be technically revoked over character issues involving station ownership. Most communications attorneys believe it’s extremely unlikely the FCC will revoke Fox’s U.S. licenses. It is extremely rare for a TV station to have its licence revoked.
Hundreds Of Alleged VIP Phone-Hacking Victims To Be Named: UK Independent
Rupert Murdoch Resigns As Director Of News International
James Murdoch Completes His Exit From News Corp’s UK Newspaper Operations
UPDATE, 7:11PM Today: News Corp’s board this evening unanimously approved the proposed plan to split the media conglomerate into two separate companies, one focused on its entertainment businesses and the other its publishing, the Wall Street Journal reports. Chairman and CEO Rupert Murdoch spoke at the board meeting that lasted about 90 minutes, according to a sourced cited by the Journal. Details including who will run the publishing business have not yet been decided. News Corp is expected to announce the split formally tomorrow morning. 20th Century Fox, Fox Broadcasting Co. and its TV stations, plus Fox News Channel and other cable networks and News Corp’s considerable global satellite businesses would be part of the entertainment company. Publishing businesses including The Wall Street Journal, New York Post and the HarperCollins book imprints would fall under the publishing umbrella. News Corp’s Australian newspaper businesses and the company’s News International operations are also publishing companies but the Journal did not elaborate on management structure. Read More »
You wouldn’t know that the Hulu auction was a failure based on the way News Corp COO Chase Carey describes the owners’ plans. They decided to hang on to the digital video service because its value to them “dwarfed some of the values that were being put on it” by bidders including Dish Network and Google. Keeping Hulu reflects “a judgment that this digital space is incredibly important and is going to be, over the next five years and beyond, the most important field we have to navigate.” As a result, he told the UBS Annual Global Media and Communications Conference, “we’ll do what’s necessary to make it grow.” But that doesn’t necessarily mean adding movies to the package to make it more competitive with Netflix. ”Me-toos aren’t a great place to be in this business,” Carey says. “We want to look at it with a fresh eye.”
Investors strangely seemed uninterested in the News Of The World hacking scandal. But one of the consequences — News Corp’s decision to abandon its effort to buy BSkyB — was a concern. Carey says that it’s “one of the things we have to figure out” because he says the company gets ”a fraction of credit” it believes it deserves for its 39% stake in the UK media company. News Corp must ”do a better job communicating value.” Still, he didn’t leave investors empty-handed: Carey says that News Corp’s recently launched round of share repurchases is “certainly not a one-time thing. It’s an important part of our capital allocation,” he said, adding that News Corp shares are ”woefully undervalued.” Read More »
Following marathon negotiations, and with only a few hours to spare before the midnight deadline tonight, Fox and DirecTV have reached a new carriage agreement. The deal covers not only all Fox Networks that were in danger of going dark on DirecTV systems tonight — FX, National Geographic Channel, Nat Geo Wild, Speed, Fuel TV, Fox Soccer, Fox Soccer Plus, Fox Deportes and Fox’s regional sports networks — but also Fox Broadcasting/the Fox local stations, whose deal with DirecTV was up at the end of the year, and Fox News Channel and Fox Business Network, whose agreement was up at the end of January. “We both know the past ten days have been challenging, but we’re pleased that both sides could eventually come together to ensure our viewers continue to enjoy Fox programming,” the two sides said in a joint statement. No information on the financials of the deal was released. DirecTV previously claimed that Fox was seeking a 40% hike, something the other side dismissed as ridiculous. According to sources, Fox has landed a healthy double-digit license fee increases in the new deal, which was closed early because all executives involved have small children and had to go do trick-or-treating. The power of little kids in Halloween costumes …
News Corp COO Chase Carey bobbed and weaved today when audience members at the Goldman Sachs Commmunicopia Conference asked questions that touched on the company’s hacking and police bribery scandals. “The media noise has been surreal around it,” he says. “The truth will come out. The issues will work their way out.” He did note that there’s “nothing we’ve seen” to support the allegation — which the Justice Department is investigating — that News of the World may have hacked phones of families of 9/11 victims. Carey wouldn’t rule out the possibility that News Corp might renew its effort to buy the 61% of BSkyB that it doesn’t already own. “We’ll continue to be a shareholder. … We have a lot of flexibility if and when something arises.” He added that he’s “not going to get into speculating” about whether UK officials might force News Corp to give up its current shares in the satellite power. As for the newspaper publishing business — which a lot of investors would like to see News Corp dump – Carey says the company should “take a fresh look at it.” But that could involve expanding operations such as Dow Jones and The Wall Street Journal. “There are things beyond (putting them on iPads) that we can do.” Read More »
Fox Broadcasting has promoted within, naming 15-year Fox ad sales veteran Toby Byrne as the company’s new president of sales. Byrne, who currently serves as SVP of Eastern Sales, will take over the top post on January 1 when Fox’s longtime head of sales Jon Nesvig is set to retire.