November 07, 2012 1:31pm PT by Eriq Gardner
Judge Denies Injunction Against Dish 'AutoHop Ad-Skipper' (Exclusive)
On Wednesday, U.S. District Court Judge Dolly Gee in Los Angeles refused to grant Fox Broadcasting's first attempt to block Dish Network's advertising-skipping DVR services known as "AutoHop" and "PrimeTime Anytime."
The court order is under seal, and attorneys for both sides have declined comment, citing confidentiality.
However, The Hollywood Reporter has learned that a preliminary injunction has been refused. Further, the ruling might not be a complete victory for Dish because the judge is inclined to accept certain copyright infringement theories.
Both sides are presenting the ruling in the most favorable light. Dish's service has several features to it, and the judge's decision likely has some nuance to how she sees different elements of the ad-skipping technology. According to sources, Gee's ruling is a rather peculiar one, which remains under seal to allow both parties to redact certain confidential trade information.
Fox says it is "gratified the court found the copies DISH makes for its AutoHop service constitute copyright infringement and breach the parties’ contract." (Fox's full statement is below.)
Dish responds that Judge Gee found it likely that Dish customers using PrimeTime Anytime cannot be liable for copyright infringement, that copies made using Hopper’s PrimeTime Anytime feature do not infringe on Fox’s exclusive reproduction rights under federal copyright laws, and that the AutoHop doesn't constitute unauthorized distribution under federal copyright laws and doesn't violate the VOD provisions of the parties contract. Dish says it is "gratified" with the result, too. (Dish's full statement is also below.)
If the technology has prompted a provocative ruling, it's no surprise given the heated dispute that erupted in May.
That month, each of the major networks sued Dish, contending that the technology introduced to consumers this past March amounted to "a bootleg, commercial-free video-on-demand service" that would irreparably harm the television industry by threatening the billions of dollars spent each year on commercials. Several lawsuits are now proceeding concurrently.
Two months ago, a hearing on the preliminary injunction was held.
Fox told the judge that Dish's new DVR system represents massive copyright infringement as well as a breach of the contract it has with the satellite distributor.
The broadcaster believes that Dish has ultimate control in the way its consumers have been copying programs in a commercial-free format on the system. Dish, on the other hand, has presented arguments that it is merely "enabling a consumer's option" to record commercial-free programming.
Both sides don't agree on much. Neither can see eye-to-eye on how the technology should be defined.
The satellite company is asserting that AutoHop (aka the Hopper) is really just an improvement on existing recording devices that have been accepted by the industry and judicially blessed as "fair use" going back to the Supreme Court's 1984 ruling on the Sony Betamax VCR and continuing through the Ninth Circuit's 2008 ruling on Cablevision's remote-storage DVR.
Fox dismisses Dish's contention that the technology is merely a "souped-up DVR" and disputes that the freedom to time-shift is at stake here.
Now, a judge has weighed in, denying the injunction but also finding some elements of the ad-skipping technology that might be problematic. We'll post the full decision with further analysis when it becomes available.
Here's Fox's statement:
"As reported, the court denied Fox’s request for a preliminary injunction. But we are gratified the court found the copies DISH makes for its AutoHop service constitute copyright infringement and breach the parties’ contract. We are disappointed the court erred in finding that Fox’s damages were not suitable for a preliminary injunction. We intend to appeal that portion of the court’s decision, as well as the court’s separate findings concerning the PrimeTime Anytime service. DISH is marketing and benefitting from an unauthorized VOD service that illegally copies Fox’s valuable programming.”
And here's a statement by Dish executive vp and general counsel, R. Stanton Dodge:
"Today’s ruling is a victory for common sense and customer choice. DISH is gratified that the Court has sided with consumer choice and control by rejecting Fox’s efforts to deny our customers access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home DVR. The ruling underscores the U.S. Supreme Court’s ‘Betamax’ decision, with the court confirming a consumer’s right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose. We look forward to vigorously defending AutoHop and Primetime Anytime, and the choice and control those features deliver our subscribers.”
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