Fox Takes New Tack in Hopper Legal BattleFiles new request for injunction focusing on new Internet streaming and recording functions rather than ad-skipping 2/21/2013 11:47:58 PM Eastern
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
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