Dish Tells Court Fox Is Changing Tune on Sling

Asks it to reject injunction arguing Fox has had years to complain about Sling place-shifting

By John Eggerton -- Broadcasting & Cable, 3/16/2013 5:28:58 PM

Dish has asked a Central California U.S. District Court to deny Fox's request for a preliminary injunction against Dish's Hopper over the introduction of two new features that allow it to place-shift programming to mobile devices.

It had earlier tried to block the service focused on its ad-skipping function, but last month took a new tack after Dish introduced new iterations at the Consumer Electronics Show that stream and record programming for Internet, out-of-home viewing. Fox says that clearly violates Dish's contract with Fox, as well as copyright law.

In its response, filed late Friday (March 15), Dish argues that the underlying Sling hardware used in its new iterations has been around for seven years during which Fox not only did not complain but its lawyers told a Second Circuit Court in 2012 that Sling use "would not be a public performance."

Dish also says that in a 2010 joint press release about a Dish DVR, both companies touted its built-in Sling functionality and that Fox News it was a "legitimate" way to watch a game and that Fox News called it a legitimate way to "watch any game."

"Fox's knowing delay destroys the other necessary elements for a preliminary injunction," said Dish. "Fox's inaction for the better part of a decade destroys any notion of irreparable harm, and its licenses in the meantime make clear that any damages for a purported breach of contract can be readily calculated."

The four-pronged court test for granting a preliminary injunction is: (1) likelihood of success on the merits; (2) likelihood of irreparable harm absent the injunction; (3) the harm/equities balance of the stay tips in their favor; and the balance of equities tips in his favor," and (4) "that an injunction is in the public interest.

Dish also pointed to a 2008 Copyright Office decision that Sling "made "existing licensed programming available to individuals for personal use in
a controlled fashion and without the need for an additional license."

"Dish does not infringe Fox's public performance right by providing the Dish Anywhere feature nor do the million other Sling-based devices already in consumers' homes," the company told the court. "Consumers -- not Dish -- make the transmissions using Sling. Those transmissions are private and controlled. There is no infringement..."

The court denied Fox's initial request for an injunction based on the ad-skipping Hopper function, but saw an opportunity to file again.