5:07pm PT by Eriq Gardner
Fox Attacks Dish Network's Legal Moves Over Auto Hop
Fox Broadcasting is asking a federal court to let its lawsuit proceed over Dish Network's recently-introduced technology that the network describes as "a bootleg, commercial-free video-on-demand service."
In a court filing in New York, Fox portrays Dish as freaking out after The Hollywood Reporter first revealed that the satellite TV company was about to be sued over AutoHop. As a result of THR's article, Dish is said to have rushed a "hastily-drafted complaint" into court the next morning that was riddled with errors. Fox says the court system has no room for such an anticipatory strike.
On May 24, Dish's technology triggered a litigation parade as Dish, Fox, CBS, and NBC each filed separate lawsuits.
Dish filed its complaint first by exactly 29 minutes in New York federal court, seeking a declaratory judgment that its ad-skipping technology complies with copyright law. The networks later filed lawsuits in California federal court against Dish over AutoHop as well as its "Primetime Anytime" feature, which allows consumers to enable a recording of the entire primetime broadcast schedule for all four major networks every night and have it available for eight days.
Being first to file usually means getting to choose the venue for the lawsuit. A New York judge issued a temporary restraining order that barred Fox from pursuing its lawsuit against Dish until a hearing to settle some of the jurisdictional issues.
The fight over which venue the dispute plays out holds significance. It not only will shape the offense and defense, but Dish likely wants to be in the same New York jurisdiction that in 2008 handed Cablevision a huge victory against content holders after introducing a remote-storage DVR service.
So on Friday, Fox hit back with a motion that opposes the injunction. The network faults Dish for relying too heavily on the THR story and not doing enough homework.
"Dish’s complaint has all the hallmarks of a rush to the courthouse," says the memorandum. "Dish did not identify the proper defendants before filing suit, did not name the copyright holders in its complaint, and did not identify any of the contracts or provisions that it allegedly did not breach."
The memo adds that Dish has underplayed the scope of Fox's beef, saying, "Dish’s complaint is narrowly directed at the Auto Hop feature only, and does not seek declaratory relief in connection with the unauthorized Primetime Anytime copying, or in connection with its distribution of Fox’s signal over the Internet via Sling."
The parties are now arguing over whether Dish's suit was an unlawful anticipatory lawsuit or not.
Dish says it isn't because because Fox did not send an official demand letter.
But Fox believes that the THR article was enough, that Dish quoted the article extensively in its complaint, and that its adversary has admitted to having been threatened with litigation. Fox goes onto say that 29 minutes doesn't really matter. "When two complaints are filed less than a few days apart, the first filed rule does not apply," says the memo.
Dish is faulted for naming as a defendant Fox Television Holdings, Inc. (which operates 27 local Fox stations).
Fox also points out that many of the parties, witnesses and documents are located in Los Angeles and that even Dish, headquartered in Colorado, is closer to the West Coast.