January 24, 2014 10:24am PT by Eriq Gardner
Appeals Court Won't Rehear Fox's Attempt to Stop Dish's 'Hopper' Ad-Skipper
Fox Broadcasting won't get a full panel of judges at the 9th Circuit Court of Appeals to review its attempt to enjoin Dish Network's advertising-skipping DVR services known as "AutoHop" or "Hopper" or "Primetime Anytime."
On Friday, the appeals circuit voted unanimously to deny Fox's petition for a rehearing.
Fox is among the broadcasters suing Dish over the allegation that the satcaster's DVR service constitutes an unlicensed on-demand service that violates its copyrights and breaches contracts.
Last July, the 9th Circuit ruled U.S. District Court Judge Dolly Gee in Los Angeles didn't abuse her discretion in finding that the record hadn't established that the broadcaster would win its direct and contributory infringement claims. Judge Gee denied a preliminary injunction, and that decision was affirmed. (The 9th Circuit essentially affirms again today and takes the opportunity to correct a scholar's quote.)
Fox's lawsuit now continues at the trial court. There, Judge Gee has expressed reservations about whether Fox can ultimately make the case for infringement. On the other hand, the "quality assurance" copies within Dish's system might not be covered by a "fair use" defense. Additionally, the judge has found that Fox is likely to beat Dish in court with respect to one of its contractual claims.
Nevertheless, the 9th Circuit's decision not to rehear the case is good news for Dish, which has staked much of its fair use defenses on the 1984 Supreme Court Betamax ruling as well as a 2009 2nd Circuit decision concerning Cablevision's remote-storage DVR.
The denial of a rehearing also means that other lawsuits against Dish -- including one brought by NBC -- will proceed. The NBC litigation was stayed at the consent of the parties pending the resolution at the 9th Circuit. It's possible that Fox appeals the Hopper case to the Supreme Court, although it seems unlikely that the high court would agree to review another TV industry copyright dispute just weeks after agreeing to hear the dispute concerning Aereo.
Fox released a statement on Friday saying: "We are disappointed in the decision but recognize that preliminary injunctions are rarely overturned on appeal. That said, the ruling was based on a factual record from more than a year ago. Now that we have gathered more evidence, we are confident that we will ultimately prevail on all of our claims."