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.
UPDATE, 5:20 PM: The companies have officially announced a “wide-ranging” deal, which “will result in dismissal of all pending litigation between the two companies, including disputes over PrimeTime Anytime and AutoHop.” The agreement calls for Dish to disable AutoHop functionality for ABC content within the C3 ratings window. The pact also for the first time allows Dish customers to access Disney’s authenticated live and VOD products. The full release is below the original story.
PREVIOUS, 3:59 PM: They both made big concessions as part of a new — and long-awaited — program carriage deal that Dish Network cut with Disney, The Wall Street Journal reports. It says that Dish Network has agreed to disable the Hopper DVR’s “Auto Hop” feature for ABC shows for the first three days after they air. Disney, in return, will drop out of broadcasters’ suit against Dish. They’ve said that the DVR’s feature that automatically jumps past ads on some recorded shows infringes on their copyrights and violates carriage contracts. Dish Chairman Charlie Ergen has steadfastly cast himself as a champion for his customers’ interests, saying that Hopper simply automates what DVR owners already can do with their remote controls. Now that Dish and Disney have agreed to allow ad zapping after three days, we’ll have to see whether other broadcasters can accept similar terms. CBS chief Les Moonves said in November that he’s “very flexible. We’re willing to negotiate.” Last month Ergen said that he was “cautiously optimisic” about striking a deal with Disney, in part because CEO Bob Iger — who’s also a member of Apple’s board – “has looked at [terms] in ways that others have not.” Read More »
The satellite company’s Hopper DVR ”has evolved from a plain old set top box to….the hub of the electronic home” — and soon will monitor and automate household functions — Dish Network CEO Joseph Clayton said today at the International CES confab. Dish used the platform to unveil several enhancements including an ability to record eight shows at once (if as many as four are major broadcasters), and watch four simultaneously. Users also can download programming to mobile devices, and integrate Hopper services with Sony’s PlayStation 3 and 4 models as well as with certain LG TV sets and Amazon’s Kindle Fires. Hopper apps already work with Android and Apple devices. The beefed up Hoppers likely will further infuriate broadcasters who are suing Dish, alleging that the DVRs breach copyrights with their ability to automatically skip over ads in recorded programs. (Dish says consumers already can zap ads with their remote controls.) The company says that improvements in the Hopper’s Sling technology will enable users to stream live and recorded shows, including with the ad skipping capability, both inside and outside the home. Many programmers want distributors to pay extra for those TV Everywhere capabilities. The Sony game consoles and LG TVs will be able to integrate with the Hopper wirelessly via an app as long as they’re on the same wifi network. The iPad app also now will be able to respond to voice commands to find … Read More »
The CBS chief is taking Dish Network Chairman Charlie Ergen at his word after he said this week that there’s a way for broadcasters to benefit from his Hopper DVR, which automatically zaps ads on recorded shows. “We’re very flexible. We’re willing to negotiate,” Les Moonves told investors today at the Guggenheim Securities TMT Symposium. Calling Ergen “a very smart man” he says “if there’s a way to do this that benefits everybody, we’re very open to it.” But the bottom line has to be that “we need to get paid for our content…. We spend $4M an episode for NCIS. I have to pay for it.” Broadcasters have sued Dish alleging that the Hopper infringes on their copyrights; Dish counters that it simply automates the ad skipping that DVR viewers already do. The fate of the device is an issue in Dish’s current program carriage negotiations with Disney. Ergen says the Hopper “has built-in technology that can target commercials to customers in a better [way]” and “give the broadcaster more revenue” — although he added that “it’s not a proven concept yet.” 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.
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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.
Related: Fox Loses Latest Effort To Block Dish Network’s Hopper Ad-Zapping DVR Read More »
21st Century Fox had hoped to persuade a federal appeals court in LA to overturn a decision that allowed Dish Network to keep selling its Hopper DVR while the companies battle over Fox’s claim that it infringes on its copyrights and breaches contracts. But the Ninth Circuit Court of Appeals ruled that Fox didn’t show that it was likely to win its case against the Hopper, which can automatically jump past commercials on recorded broadcast network shows — undermining the value of the ads. Fox says that it is “disappointed in the court’s ruling, even though the bar to secure a preliminary injunction is very high. This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly.” Fox was appealing a November ruling by U.S. District Court Judge Judge Dolly Gee who refused to block sales of the Hopper, even though she agreed with Fox that Dish has likely committed copyright infringement. Dish says that consumers already have a right to skip over commercials, and its technology simply makes the process easier. “This decision 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,” says Dish … Read More »
The satellite company isn’t ready to give up on the single-screen TV viewing experience yet. It just rolled out an app, called Social, that it says is the industry’s “first and only set-top app that delivers on-screen social content relevant to the show or channel a viewer is watching.” Subscribers who have Dish’s Hopper Whole-Home HD DVR can keep their eyes on the TV screen to watch a program while they also read and write posts to Facebook and Twitter (up to four accounts apiece). When the app is open, they’ll have three options on the right side of the screen: “Now Watching” will offer the Twitter feed for the show the user is watching. “My Twitter” will enable the viewer to see and send tweets on his or her personal Twitter feed. And “My Facebook” offers similar functionality for Facebook. At the bottom on the screen users will see a data bar with statistics and information including, as Dish describes it, “the top areas in the country where people are Tweeting about the program, the program’s sentiment rating, percentage of Tweeters by gender and frequency of Tweets.” Dish’s Director of Product Marketing and Management Jimshade Chaudhar says that last year “Twitter saw 32 million Americans tweet about TV programming, an incredible display of consumer interest in wanting a more social experience from TV. Through our Social app, we’ve made it easier for consumers to follow social conversations and post … Read More »
Dish Network‘s carriage deal with Disney to keep carrying its ABC stations and cable services including ESPN and the Disney Channel will have to be renewed later this year, and some analysts wonder whether talks will run aground: ABC is one of the major networks suing Dish for violating their copyrights with its Hopper DVR, which can automatically zap their ads on time-shifted shows. But Dish execs say that they aren’t concerned. “I would not expect them to take (ABC) down,” CEO Joe Clayton told analysts today. “Normally greed prevails. There’ll be a discussion and a win-win for both companies.” Chairman Charlie Ergen added that, with the big outlays ESPN has made for sports programming rights, the loss of revenue from Dish’s 14.1M subscribers “would be a long term problem for Disney.” But Ergen adds that Dish has been “misunderstood” in the Hopper dispute. All DVR users can skip commercials, and “what we’re really saying to the broadcasters is there’s a way for you to not put your head in the sand.” Dish wants to help them target ads so viewers don’t have to watch commercials for products that don’t interest them. “I think we can show broadcasters that we’re not foe — we’re friend,” Ergen says. “The advertising model is going to change with or without the Hopper.”
Dish is using the recent controversy over the Best In Show award the satcaster’s new Hopper with Sling DVR did not receive as a recruiting tool. The ad-zapping service was awarded the top prize by the editors of CNET before they were overruled by corporate parent CBS who is suing Dish over Hopper. Today Dish bought full-page ads in several major newspapers to crow about the award it didn’t get and blast CBS. In the ad, which first appeared on Dish’s Web site, the company says “CBS will go to any lengths to keep you from enjoying ad-skipping technology – even censoring its own writers and throwing out their decision to name Hopper ‘Best In Show.’”
The controversy shifted the Hopper debate about whether it is ethical for a distributor whose service depends on programming to cut the lifeline that makes a lot of that programming possible, commercials, to one about journalistic integrity. CNET media writer Greg Sandoval resigned as a result of CBS’ decision to bar Dish from getting the award. In statement issued earlier this week, the network said it “has been consistent on this situation from the beginning” and called the debacle ”an isolated and unique incident” involving “a product that has been challenged as illegal” by CBS “and nearly every other major media company as well.”
The satellite company had high hopes that its new Hopper with Sling DVR would win CNET’s widely watched “Best of CES” award after the tech news and review site named it a finalist and gave it an enthusiastic review, but CNET changed its mind before the awards were announced today. CNET says it removed the new Hopper from consideration “due to active litigation involving our parent company CBS Corp.” which says the DVR’s ability to automatically skip over ads in recorded shows violates the network’s copyrights. What’s more, CNET says “We will no longer be reviewing products manufactured by companies with which we are in litigation with respect to such product.” Dish Network CEO Joe Clayton considers this is a free speech issue. Read More »