September 20, 2020

Judge sides with Dish in Fox Copyright Ruling, says Aereo No ‘Game-changer’


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DISH Antenna, 2014 SOURCE: DISH NETWORKBy Scott Flaherty, From The Litigation Daily

Dish Network LLC and its lawyers at Orrick, Herrington & Sutcliffe have come out ahead in an important early test of the U.S. Supreme Court’s decision in American Broadcasting Companies v. Aereo, largely escaping Fox Broadcasting Co.’s copyright claims over technology that records network television and replays it commercial-free.

In a ruling made public Tuesday evening, U.S. District Judge Dolly Gee in Los Angeles sided largely with Dish and its lawyers, led by Orrick’s Peter Bicks and Annette Hurst, on copyright and breach of contract claims that Fox lodged against the satellite TV provider. The judge released a sealed version of the decision last week, just days before the two sides agreed to stay the case ahead of a potential settlement.

In the lawsuit, Fox and its lawyers at Jenner & Block—led by partner David Singer—challenged Dish’s Hopper set-top box and DVR, as well as its “PrimeTime Anytime” and “AutoHop” products. The services allow customers to digitally record prime time programming on the major networks and replay those shows later while skipping commercials.

Gee’s decision, which was issued under seal on Jan. 12 but first made public Tuesday, granted Dish’s motion for summary judgment on several key copyright issues in the suit, and concluded that the satellite TV company’s PrimeTime Anytime and the AutoHop ad-skipping services don’t run afoul of federal copyright law.

“Dish does not directly or secondarily infringe Fox’s right of reproduction, distribution, or public performance by offering [PrimeTime Anytime] to its subscribers,” the judge wrote. “The linchpin in the copyright infringement analysis is whether Dish infringed Fox’s exclusive rights of reproduction and distribution. AutoHop neither copies nor distributes anything—it skips ads.”

Gee did, however, find in favor of Fox on some of its contract claims, holding that certain Dish services violated a no-copying provision in a retransmission agreement the satellite TV provider had reached with Fox.

The publicly released ruling comes after both Gee and the U.S. Court of Appeals for the Ninth Circuit denied Fox’s bid for a preliminary injunction in the case. Ruling on the injunction, Gee and the Ninth Circuit both held that Dish hadn’t likely infringed Fox’s copyrights. The Ninth Circuit did conclude, however, that Dish might have breached its programming contract with Fox.

After the Ninth Circuit ruled, the U.S. Supreme Court held in June that online streaming television provider Aereo Inc. had based its business model on wholesale copyright infringement. Aereo prompted Fox and its lawyers at Jenner & Block to raise a new set of arguments in the Dish case.

In the ruling released Tuesday, Gee was largely dismissive of Fox’s arguments based on Aereo.

Fox contends that the Supreme Court’s recent decision in [Aereo] is a game-changer that governs the outcome of its copyright claims in this case,” she wrote. “The court disagrees.”

In competing statements issued late Tuesday, Dish and Fox both claimed victory over aspects of Gee’s summary judgment decision.

“Consumers are the winners today, as the court sided with them on the key copyright issues in this case,” said Dish executive vice president and general counsel R. Stanton Dodge. “This decision has far reaching significance, because it is the first to apply the Supreme Court’s opinion in Aereo to other technology.”

Fox, meanwhile, applauded Gee’s findings in favor of the network on some of the contract claims and downplayed the significance of the judge’s ruling on the copyright issues.

“This case is not, and has never been, about consumer rights or new technology. It’s always been about protecting creative works from being exploited without permission,” Fox spokesman Scott Grogin said in a statement.

Judge Gee agreed on Friday to stay the case until October 2015, scuttling a trial that had been scheduled to begin next month.

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