Court Denies Fox Injunction Against Dish's Hopper

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

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