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
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.