May 30, 2012 4:38pm PT by Eriq Gardner
New York Judge Halts Fox Lawsuit Over Dish Ad-Skipper (Exclusive)
In the battle about which of the various lawsuits over Dish Network's AutoHop service proceeds, Dish has scored first.
A New York federal judge on Wednesday issued a preliminary restraining order that bars Fox from pursuing its lawsuit against Dish until a hearing more than a month from now. That could give Dish the opportunity to play offense in the fight over its AutoHop service, which allows subscribers to bypass commercials.
Last week, Dish got to the court first, beating separate lawsuits by CBS, NBC and Fox by a mere half hour. The quick feet appears to have given the satellite TV distributor a slight jurisdictional advantage as U.S. District Court Judge Laura Swain has just issued a temporary restraining order against Fox.
As opposed to the broadcasters that sued in California, Dish appears to have taken advantage of the earlier rising sun in New York to pursue a declaratory judgment that its ad-skipping technology complies with copyright law. Dish chose New York likely with an eye on the fact that in 2008, the 2nd Circuit handed TV distributors a huge victory over content holders in a case involving Cablevision's plan to introduce remote-storage DVRs, which was heavily disputed at the time.
Swain's temporary restraining order against Fox could be lifted at a hearing that has been scheduled for July 2. At the hearing, the judge will consider Dish's motion to enjoin Fox, NBC and CBS from further pursuing their cases.
Dish is cheering the development.
“We’re pleased that the New York federal court has entered a TRO against Fox until the New York court decides whether the suits filed by Fox, CBS and NBC in California should be enjoined in favor of Dish's suit in New York," said Dish executive vp and general counsel, R. Stanton Dodge, in a statement. “Dish looks forward to presenting its case and prevailing on the merits."
UPDATE: Fox has responded to the ruling: "We look forward to making our case against DISH for copyright infringement and breach of contract in court," a Fox spokesman said in a statement.
In its lawsuit, Dish plays down any thought that its service represents a big leap for copyright purposes. According to the complaint, "Viewers have been skipping commercials since the advent of the remote control; we are giving them a feature they want and that gives them more control.”
Technically, a California judge could see the New York judge's order as a jurisdictional intrusion and return fire, but with the heavy docket load of the judicial system these days, the California judges are likely to be happy at the relief from more work.
The broadcasters are claiming copyright infringement, with Fox also alleging breach of contract. Fox said in its lawsuit that Dish's "wrongheaded decision requires us to take swift action in order to aggressively defend the future of free, over-the-air television."