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Fox Urges Judge to Block Dish Anywhere

In another chapter of broadcasters efforts to stop unauthorized digital streams of their signals, Fox Broadcasting on Friday urged a federal judge to halt Dish Network’s offering of recently introduced new feature of TV on the go.

In an hourlong Los Angeles hearing before U.S. District Judge Dolly Gee, Fox’s attorneys argued that the features violate retransmission agreements and infringe on their copyrights. Gee issued no decision on Fox’s motion for a preliminary injunction, but is expected to in the coming weeks.

In another case, Fox and the other networks also are challenging the legality of Aereo, a startup that offers broadcast streams to New York subscribers, but courts have so far refused to stop the service.

The Dish Network offering of Dish Anywhere, introduced in January, features Slingbox technology to allow subscribers to watch broadcast signals remotely, in what Dish calls “place-shifting.” Dish already drew the ire of Fox and other broadcast networks when it introduced its AutoHop feature last year, a technology which offers subscribers entire nights worth of primetime content with the commercials already skipped. In a decision last year, Gee refused to immediately stop that feature, and the networks are appealing her decision.

Dish defends its Anywhere feature by noting that Fox and other broadcasters have only recently challenged the technology, first introduced by Slingbox seven years ago. They claim that consumers, not Dish, that are the ones that are making the transmissions using Sling technology, a private use of copyrighted content that does not violate the Copyright Act’s prohibition against unauthorized public viewings.

“It is the exactly the same transmission technology” in the standalone Slingbox and in the Dish offering, noted Dish attorney Annette L. Hurst of Orrick, Herrington & Sutcliffe.

But in questioning attorneys for Dish, Gee at one point focused on language in their Fox contract that restricts the use of its signal to “private home use,” and noted that subscriber agreements contain similar language. Dish Anywhere offerings, however, give its subscribers the ability to watch shows on mobile devices. Orrick’s Peter Bicks, another attorney for Dish, described such language as a “shorthand phrase” that is akin to the legal ability of consumers to record a show and watch a VHS tape of it elsewhere. He also said that Fox has not objected when Dish introduced previous products, like a DVR, that also incorporated Sling technology.

Dish also suggests that Fox is contradicting itself. In a filing earlier this week, it noted that in appealing the most recent Aereo decisions, Fox’s attorneys at Jenner & Block wrote that “a subscriber who records a program in his den and watches it in his bedroom is not transmitting a program to the public’ he is transmitting it to himself. That is a private performance.”

But the Dish case is different from Aereo in that Dish has contract agreements with the broadcasters in place, while Aereo does not. Fox argues that the case is not even a “hard” one to decide: Its license agreement with Dish says that it cannot retransmit Fox’s live broadcast signal over the Internet, “and cannot allow anyone else to do so.”

“As a matter of law, a contract that expressly prohibits Internet retransmission cannot be ‘interpreted’ to allow Internet retransmission,” Fox’s attorneys, led by Jenner & Block’s Richard Stone, said in a brief on April 5. At the hearing, he said that the contract “expressly prohibited” such streaming.

Gee asked Stone whether Fox, if it is successful against Dish, will seek to stop technology like Slingbox. “No,” Stone said, arguing that there is a difference.

Fox argues that while Dish Anywhere uses Sling technology, it is not a standalone Slingbox, which “does not require an ongoing monthly subscription with Dish or any other service provider.” A reason the networks have yet to challenge Slingbox is that it has yet to gain widespread popularity, while the Anywhere service is available to 2 million homes.

“Sling technology is just Dish’s way of processing a video signal so it can be transmitted over the Internet,” Fox said in its brief. “It is not a magical new invention that allows service providers to deliver live broadcast television over the Internet without a license.”

 

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