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Fox Broadcasting and Dish Network are optimistic about a settlement in the nearly three-year-old lawsuit over the satcaster’s DVR technologies, but U.S. District Judge Dolly Gee has decided that it would be best to release the 63-page summary judgment that she issued under seal on Jan. 12.
And so, even though the case is on pause until October and despite some concern by the parties that the decision being made public might hamper resolution of the case, Judge Gee’s ruling has been released (here) minus some redactions.
Both sides can claim victories on the path to trial or settlement.
Judge Gee has largely given Dish relief from Fox’s claims of breaching copyright via the PrimeTime Anytime and AutoHop services that allows subscribers to have access to ample programming stripped of advertisements and available on digital and mobile devices. However, Dish must still answer for breaching Fox’s copyrights by reproducing programming in copies made for internal quality assurance purposes.
While Dish escapes some of Fox’s contractual claims, the broadcaster gets the edge on this front — particularly in regards to a 2002 agreement where the satellite company was prohibited from authorizing the copying of any portion of Fox’s programming without permission. Damages on the front, however, are very uncertain. And there won’t be any injunction.
In getting the upper hand in the copyright fight, Dish gets the judge to distinguish what it is doing from what Aereo tried to do before losing big at the U.S. Supreme Court. The judge rejects Fox’s contention that the Aereo ruling was a “game-changer” for the purposes of this case, pointing out that Dish wasn’t carrying programs onto “private channels to additional viewers” as Aereo had done, that Dish at least had initial license for the retransmission unlike Aereo, and further, that Aereo was streaming from its own hard drive while Dish’s platform “can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box.”
Judge Gee rules out any violation of public performance — both by Dish and its subscribers. The judge declines to do anything on Dish merely “making available” copyrighted programming to its subscribers. The judge holds that much of the time-shifting technology is covered as a fair use of copyright. And more.
Those are important victories for Dish, which nevertheless can’t be considered a total winner because there’s still features within Dish’s overall system that won’t be given a legal pass. “The QA copies are not transformative,” the judge writes.
And running through the long and complex summary judgment opinion is a concurrent analysis of Fox’s contract claims, which often mirror the copyright analysis but not always since the judge seems to credit the parties with having come up with a more restrictive arrangement. While something like place-shifting might be protected as fair use under an interpretation of copyright law, that doesn’t necessarily give Dish the right to offer place-shifted Fox programming to subscribers.
The judge writes, “Given our knowledge of current technologies, it may seem absurd that a contract would allow subscribers to use DISH Anywhere on their mobile devices inside the home, but not the moment they step outside the home. Those are the terms, however, to which the parties agreed. Courts must interpret a contract to give effect to the parties’ reasonable expectations.”
Fox Networks is reacting quickly to the release of the ruling, welcoming the judge’s contract interpretations and saying that protecting copyright takes persistence and patience. The statement adds, “While we are still disappointed the court felt that PrimeTime Anytime and AutoHop do not violate our copyrights or contract, DISH has been largely disabling AutoHop anyway.”
Dish says, “Consumers are the winners today, as the court sided with them on the key copyright issues in this case.”
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