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By Sheri Pan – Edited by Insue Kim

Fox Broadcasting Company, et al. v. Dish Network LLC, et al., No. 13-56818 (9th Cir. 2014) Slip Opinion hosted by DocumentCloud

On July 4, 2014, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s denial of Fox Broadcasting Company’s (“Fox”) motion for a preliminary injunction against Dish Network’s (“Dish”), “Dish Anywhere,” and “Hopper Transfers” services.  Fox argued that the technologies, which enable Dish subscribers to stream programming from portable devices as well as cache them for offline viewing on iPads, would irreparably harm Fox because they violate copyright laws.

The Ninth Circuit ruled that the district court did not err in finding that the harm alleged by Fox was speculative.  It noted that Fox had failed to present evidence documenting such harm, even though the services had been available for several years.  The court also rejected Fox’s argument that it would lose advertising revenue, “in light of the evidence that advertisers are adapting to the changing landscape of television consumption.” Fox Broadcasting, slip op. at 4. Lastly, the court ruled that a preliminary injunction was not necessary because Fox had failed to demonstrate that allowing the services to continue operating prior to trial would induce other companies to follow Dish’s lead. It also added that any harm which did result could be adequately remedied with monetary damages.

Fox, in mounting the challenge, relied on the Supreme Court’s recent decision in American Broadcasting Company v. Aereo for support.  In Aereo, the Court ruled that Aereo violated copyright laws by providing broadcast programming to subscribers online.  Fox, in a letter to the court, argued, “Dish . . . engages in virtually identical conduct when it streams Fox’s programming to Dish subscribers over the internet [and] has repeatedly raised the same defenses as Aereo which have now been rejected by the Supreme Court.”

Jason Buckweitz, a researcher at Columbia Business School, however, noted that the Aereo case differs from the dispute at hand because Aereo had offered broadcasting content without paying for a license.  Dish, by contrast, pays retransmission fees to distribute Fox’s programming.  Under the Cable Act of 1992, broadcasters have the right to charge retransmission consent fees for redistribution of their content, 47 U.S.C. § 325, and they typically earn hundreds of millions of dollars per month from retransmission arrangements with cable companies.

Several commentators, including Mr. Buckweitz and Techdirt, warned that Fox’s reference to Aereo was only the beginning of broadcasters using the case to obtain more favorable deals with distributors.  More perniciously, they argued, Aereo could hamper innovation by threatening businesses whose services challenge the traditional avenues of content distribution.

Dish lauded the ruling and framed it as a victory for consumer choice.  Fox had previously lost a challenge to two other Dish services before the Ninth Circuit in 2013.

Sheri Pan is a 2L at Harvard Law School interested in the intersection of technology and public interest law.

Posted On Jul - 22 - 2014 Comments Off

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