Fox Takes New Tack in Hopper Legal Battle

Files new request for injunction focusing on new Internet streaming and recording functions rather than ad-skipping

By John Eggerton -- Broadcasting & Cable, 2/21/2013 11:47:58 PM

Fox has again asked a California court to block Dish's Hopper DVR, this time not focusing on the ad-skipping function, but instead zeroing in on new iterations that stream and record programming for Internet, out-home viewing, which it says clearly violate Dish's contract with Fox, as well as copyright law.

According to a copy of the petition obtained by B&C and filed Thursday in the U.S. District Court for the Central District of California, Fox is asking for an injunction against both the Hopper's retransmission of live broadcasts over the Internet to PCs and mobile devices, and the feature that records the programs so they can be transferred to iPads for mobile viewing, both new functions announced since its initial injunctions were denied last year by the same court, then a federal appeals court.

"Dish's licensing agreement with Fox gives Dish only the limited right to retransmit Fox's live broadcast signal over Dish's satellite television distribution system," Fox says, and explicitly prohibits Dish from authorizing copying that programming for out-of-home use.

In filing the new request, Fox was looking to capitalize on Dish's announcement at last month of its Dish Anywhere mobile app, which allows the second-generation of Hooper set-tops to "watch live and recorded television anywhere on Internet-connected tablets, smartphones and PCs at no additional charge."

That, says Fox, is a clear violation of Dish's license agreement with Fox "no matter how one looks at the issue," the network says, as well as copyright infringement.

Fox also pointed to the decision in Fox vs. BarryDriller, which came after Fox's initial injunction requests against Dish had been denied. In that case, a court enjoined that service, said Fox, and affirmed that "retransmitting copyrighted broadcast TV over the Internet without permission is copyright infringement because it violates the copyright owner's exclusive right to publicly perform the programs, which are copyrighted works."

Fox says that any "purported" right Dish asserts to place shift programming does not apply because it is not a consumer. "It is not 'consumer place-shifting' when Dish retransmits Fox's signal over the Internet, in violation of its license agreement, to get more people to subscribe to Dish Network," Fox says. "It's piracy."

Fox also says another recent addition, Hopper Transfers, makes its case for infringement. At the same time Dish announced the streaming service, it unveiled Hopper Transfers, which allows subs to view recorded broadcasts on iPads for "on the go" viewing. It is that move of programming out of the home that Fox says is a violation. "Dish's license agreement with Fox prohibits Dish from authorizing the copying of Fox programs 'other than by consumers for private home use.'"

Fox says that unauthorized streaming of its programming over the Internet will cause it irreparable harm, which is one of the tests for an injunction, a test Fox's earlier injunctions did not meet, according to the same court. Fox must also establish the likelihood that it will succeed on the merits of its argument and that an injunction is in the public interest.

Among the harms Fox cites are 1) increased piracy risk to its programming; 2) devaluing that programming in negotiations over digital download deals with Amazon or iTunes; 3) unfairly competing with Fox's own proprietary internet distribution web sites and mobile apps; 4) and that Internet viewing will siphon off viewers from traditional channels measured by Nielsen's C3 metrics, on which advertisers rely to set rates.

Fox points to the BarryDriller decision, in which the judge ruled that that services unauthorized streaming of Fox content would cause such harm.