July 09, 2012 1:12pm PT by Matthew Belloni , Eriq Gardner
Judge Rules Dish Ad-Skipping Lawsuit Will Proceed in California
A federal judge in New York has ruled that Fox, NBC, and CBS should be allowed to pursue their high-profile legal dispute over Dish Network's controversial ad-skipping device in California.
Venue has been at issue in the case since Dish filed a lawsuit in federal court in New York the same day Fox and other television networks filed in Los Angeles. The networks claimed Dish raced to the courthouse to secure a more favorable venue. Now, in a move that will mean several lawsuits will proceed at once on multiple coasts, a judge has lifted an injunction and dismissed parts of Dish's lawsuit against the networks.
Fox issued the following statement:
"We are pleased that the court has determined that Fox, as the true victim and plaintiff here should have the right to proceed in its chosen forum in the 9th Circuit. Now we move on to the real issue at hand: demonstrating that Dish Network has created and marketed a product with the clear goal of breaching its license with Fox, violating copyrights and destroying the fundamental underpinnings of the broadcast television business -- which damages not only Fox and the other major networks but also the hundreds of local stations around the country. We look forward to trying and winning the case on its merits."
The legal war broke out May 24 over Dish's AutoHop and PrimeTime Anytime services that Fox describes as "a bootleg, commercial-free video-on-demand service."
That day, Dish filed a lawsuit in New York that beat separate lawsuits in California from Fox, CBS, and NBC by less than a half-hour.
Dish got a temporary restraining order from a New York judge that prevented Fox from pursuing its own case in California, but the network argued that Dish filed a "hastily drafted complaint" that was merely meant to be an anticipatory strike
Judge Laura Taylor Swain agrees that Dish's filing was motivated by a fear of imminent legal action and provides several reasons Dish shouldn't get the benefit of being first to file.
The judge points to a Hollywood Reporter article that "conveyed the unmistakable impression that a legal showdown was inevitable. ... Dish's complaint leaves no doubt as to how Dish understood the import of this article."
Read the full ruling here.
The judge also points out that Dish filed its lawsuit within 24 hours of the THR article and that Dish's complaint was indicative of "hasty preparation."
Dish's complaint, the judge writes, "is a mere 13 pages long, fails to name the parties who hold the copyrights, lists neither the relevant copyrights nor the contractual provisions at issue and contains only the most cursory description of the allegedly offending services."
It confirms suspicions that the lawsuit served as a "place-holder" suit to secure Dish's preferred forum of adjudication, the judge continues.
The judge is dismissing without prejudice Dish's complaint as it pertains to Fox's copyright and contract claims as well as CBS/NBC's copyright claims. Dish's lawsuit against CBS and NBC over contract issues will continue in New York as those issues weren't asserted in California. Additionally, Dish's is being given the go-ahead to pursue declaratory action against ABC that it hasn't breached copyright or violated a contract. ABC was the only major network not to bring a lawsuit, though it has signaled that it intends to file counterclaims.
It appears that the litigation will now proceed in bicoastal fashion. That rarely happens, and Swain says that there are "numerous ways to mitigate whatever inefficiencies might result."
Dish had the following statement about today's development:
“Regardless of the venue, we look forward to proceeding with this case,recognizing that it has been 28 years since the Supreme Court’s “Betamax” decision held that a viewer, in the privacy of their home, could record a television show to watch later. The Court ruled that ‘time-shifting’ constituted a fair use of copyrighted television programming. Those Betamax users could permissibly fast-forward through commercials on recorded shows – just as DVR users do today. DISH will stand behind consumers and their right to skip commercials, something they have been doing since the invention of the remote control.”