Court Denies Fox Injunction Against Dish's Hopper

But Fox says sealed decision also finds that Dish's AutoHop copies violate copyright, contract

By John Eggerton -- Broadcasting & Cable, 11/7/2012 6:26:12 PM

Fox confirms that a California District Court has denied its request that the court block Dish's commercial-skipping Hopper DVR service, but says the court also concluded the AutoHop function is copyright infringement. Dish says the decision says something very different.

The court's decision was sealed, but since it has been reported, Fox provided the following comment.

"As reported, 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."

Fox said it was disappointed that the court did not find that the damages stemming from that infringement warranted a preliminary injunction -- there is a multi-part test for such injunctions including the damage stemming from not enjoining the conduct--and said it planned to appeal that part of the decision, as well as another portion of the decision related to Dish's PrimeTime Anytime service.

"Dish is marketing and benefiting from an unauthorized VOD service that illegally copies Fox's valuable programming," Fox said.

"It's great news that the Court has resisted Fox's attempt to shut down Dish's product, before there has even been a trial on the merits of the case," said John Bergmayer, senior staff attorney at Public Knowledge, which backed Dish in the suit. "Consumers have a right to record television programs and watch them later in the manner of their choosing."

Dish reads the court decision quite differently.

"[Wednesday]'s ruling is a victory for common sense and customer choice," said R. Stanton Dodge, Dish executive VP and general counsel. "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."

In outlining the decision as it saw it, Dish said that:

• "Contrary to Fox's assertion, Dish customers using PrimeTime Anytime cannot be liable for copyright infringement;
• "Copies made using the Hopper's PrimeTime Anytime feature do not infringe on Fox's exclusive reproduction rights under federal copyright laws;
• "Neither the AutoHop commercial-skipping feature nor the PrimeTime Anytime feature constitutes unauthorized distribution under federal copyright laws;
• "AutoHop does not violate the Video-On-Demand provisions of the 2010 retransmission consent agreement (RTC) between Fox and Dish."

Dish concedes that the decision finds that copies Dish makes as part of a "quality assurance" AutoHop function likely violate copyright and its contract," but points to the finding that does not constitute irreparable harm, warranting an injunction.

Jon Lafayette contributed to this story.