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Fox Asks Judge to Stop Dish's New Ad-Skipper (Exclusive)

UPDATED: Six weeks after Dish adds place-shifting to its Hopper service, now called "Dish Anywhere," Fox files new court papers in another attempt at an injunction.

Fox Vs. Dish Network Split - H 2012
Fox Vs. Dish Network

Fox Television is again making an attempt to shut down Dish Network's advertising-skipping DVR services.

The network is filing an amended lawsuit and a new injunction motion in a California federal court over Dish's Hopper with Sling, also known as "Dish Anywhere," which was introduced at CES in January.

When the satellite broadcaster introduced its latest version of the Hopper last month, it got widespread attention when CBS prohibited its CNET subsidiary from awarding a Best of Show prize. Later, the Consumer Electronics Association overruled the decision and gave the product the prize.

Now, however, the technology will be the subject of Fox's ongoing efforts to deem Dish's products to be a bootleg, commercial-free video-on-demand service. Additionally, the legal salvo could put the spotlight on place-shifting technology from Sling Media, which allows consumers to watch television content away from their homes on computers and mobile devices.

“Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox’s live broadcast signal over the Internet or to make copies of Fox programs to watch ‘on the go,’ because Dish does not have the right to offer these services to its subscribers in the first place,” says Fox in a memorandum in support of a preliminary injunction motion. (Read here)

A first amended complaint has been filed.

Along with the filings comes interesting supporting materials including Dish CEO Joe Clayton speaking about "Dish Anywhere," Dish vp Vivek Khemka discussing what led to the company developing the next generation of Hopper product, a Clayton talk to a CES audience, a CNET news report and a Clayton interview that happened, coincidentally enough, on the Fox Business Network.

Last July, a federal judge denied Fox's first motion for a preliminary injunction, ruling that there were aspects of the copyright infringement and breach of contract case that Fox was likely to win and other aspects where Fox was unlikely to win.

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Unfortunately for Fox, the judge decided that copies made within Dish's system as an "intermediate" step to a user's time-shifting -- which the judge saw as outside fair use -- didn't pose the threat of irreparable harm.

Fox has appealed the judge's denial of its first injunction motion.

On an earnings call to discuss fourth quarter financials yesterday, Dish's top executives discussed its newest product.

Clayton described the product as giving the consumer the ability to access live and recorded content via mobile phones, tablets or PCs.

Asked by an analyst whether he expected trouble from broadcasters when it came time to negotiating new licensing deals, Clayton answered, "Let's be honest, the Sling technology we've been using has been around for almost seven years. So we believe it's a standard practice, and we don't anticipate any conflict with the programmers when we're up for renewals. So maybe that's just being optimistic, but that's how we look at it."

Sling's technology has often been discussed over the years, but has escaped any firm legal challenge. In the broadcasters' appeal of a ruling turning down an injunction against Aereo, a digital TV distributor, Sling came up repeatedly at an oral hearing. Now, it a battle over time-shifting DVR has expanded into a battle over a time- and place-shifting DVR.

"This case is not about a product that consumers are using," says Fox's court papers. "It is about an Internet streaming service being provided by Dish to subscribers who pay a monthly fee...Any purported right that Dish believes consumers have to 'place shift' live broadcast programming does not apply here because Dish is not a consumer. It is not 'consumer place-shifting' when Dish retransmits Fox's signal over the Internet, in violation of its license agreement, to get more people to subscribe to Dish Network. It is piracy."

A Dish spokesperson has responded to the lawsuit by saying, "With its latest motion, Fox continues its war against how Americans watch TV. Dish has long argued consumers have the right to privately watch shows anywhere, anytime, and it looks forward to continuing its fight on behalf of customer choice and control."

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner