Hopper with Sling and Joey Beauty - H 2013
Fox Broadcasting has lost again in its attempt to stop Dish’s Hopper with Sling, also known as “Dish Anywhere.” On Monday, the 9th Circuit Court of Appeals ruled that a district court didn’t abuse discretion by denying Fox’s motion for a preliminary injunction.
In its bid for an injunction, Fox argued, “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.”
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Fox’s bid came after it was denied a preliminary injunction on the initial Hopper, an ad-skipping DVR that broadcasters contended was an unlicensed video-on-demand service. Fox tried again when the Hopper incorporated place-shifting technology, but last September, U.S. district judge Dolly Gee shot down the attempt to enjoin it, ruling that Fox hadn’t shown Dish Anywhere would irreparably harm the broadcaster. The federal judge also concluded that if Fox ultimately prevails in its lawsuit alleging copyright violations and contract breaches, monetary damages would suffice.
On Monday, a panel of three 9th Circuit judges wrote that there was “no legal error” by Judge Gee for, among other things, “characterizing the irreparable harm forecasts of Fox’s executive as speculative.” Here’s the full opinion.
The fact that Sling place-shifting technology has been on the market for some time appears to have also hurt Fox’s legal arguments. According to the 9th Circuit, “Here, the district court found that Fox’s lack of evidence that the complained-of technology, available for several years, had yet caused Fox’s business any harm weighed against Fox’s argument that it would be irreparably harmed absent a preliminary injunction.”
The appellate opinion also shrugs off Fox’s pointing to the potential for lost advertising revenue, noting that Judge Gee’s opinion “was not clear error, in light of the evidence that advertisers are adapting to the changing landscape of television consumption.”
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One thing that’s not addressed by the 9th Circuit is how the Supreme Court’s Aereo ruling impacts the legality of Dish Anywhere. Late last month, Fox pointed the 9th Circuit toward what had happened at the high court, saying that Dish “engages in virtually identical conduct” as Aereo by transmitting programming over the Internet.
But a notice of supplemental authorities appears to have fallen on deaf ears. Aereo isn’t mentioned at all. Then again, even if Fox could use Aereo to demonstrate that it has a likelihood of prevailing, what the Supreme Court said hardly matters in an analysis of the broadcaster’s harm.
Fox’s lawsuit against Dish now proceeds back to district court.
Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner
