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Judge Rules That Dish’s Sling Features, Ad-Skipping Don’t Violate Copyright

A federal judge said Dish Network’s offering of features that automatically skip ads and another that allows subscribers to watch live broadcasts remotely do not violate copyright law.

But U.S. District Judge Dolly M. Gee’s ruling, unsealed on Tuesday, came just days after Dish and the network challenging its features, Fox, said that a settlement of their litigation was “highly likely.” Their litigation was put on hold until October, when a retransmission contract between the companies is set to expire.

Fox sought to limit key aspects of Dish’s Hopper service, including PrimeTime Anytime, which records and stores entire nights’ worth of programming, along with AutoHop, a feature that allows subscribers to automatically skip commercials. It also challenged Dish Anywhere, using Sling technology, which allows subscribers to view live programming remotely, outside of the home, on a range of devices.

While Gee ruled that such offerings did not infringe copyright, she sided with Fox in concluding that some of the Dish features, like Hopper Transfers, which enables users to download shows on mobile devices, violated its contract agreements with the broadcaster that restrict copying of programming for use outside the home. She also found fault with Dish’s copying of Fox programming for quality assurance purposes in its offering of the ad-skipping feature AutoHop, ruling that it violated Fox’s exclusive right of reproduction.

R. Stanton Dodge, Dish’s executive vice president and general counsel, said in a statement, “The decision is the sixth in a string of victories in federal courts on both coasts for the American consumer related to our Hopper Whole-Home DVR platform. We are proud to have stood by their side in this important fight over fundamental rights of consumer choice and control.”

A Fox spokesman said, “Just as we learned in the Aereo case, protecting our content sometimes requires persistence and patience. This case is not, and never has been, about consumer rights or new technology. It’s always been about protecting creative works from being exploited without permission.”

Fox had argued that the Supreme Court’s landmark ruling in favor of broadcasters in the Aereo case had a substantial bearing on the Dish case, particularly in the satcaster’s offering of Dish Anywhere.

But Gee found difference between Aereo and Dish.

“Aereo streamed a subscriber specific copy of its programming from Aereo’s hard drive to the subscriber’s screen via individual satellite when the subscriber requested it, whereas Dish Anywhere can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box,” Gee wrote. “Any subsequent transfer of the programming by Dish Anywhere takes place after the subscriber has validly received it, whereas Aereo transmitted its programming to subscribers directly, without a license to do so.”

Gee also rejected claims that Dish’s transmissions were a public performance, pointing out that the transmission “travels either to the subscriber herself or to someone in her household using an authenticated device.”

She also rejected Fox’s claims that Dish’s AutoHop and PrimeTime Anytime offerings violated the terms of a retransmission contract. Fox argued that Dish’s Primetime Anytime feature — in which the Dish DVR automatically records entire nights’ worth of programming — was really an on-demand service, something prohibited in their contract.

Dish’s offerings, part of its Hopper DVR service, drew great attention in 2012 with the introdution of the AutoHop feature, by which subscribers can play back recordings of shows with the commercials skipped over automatically. Broadcasters, worried that such a feature would undermine their business model, filed suit. ABC and CBS settled their litigation last year, with Dish agreeing to modify the ad-skipping feature so that it won’t be available for three days after shows run on ABC stations, and for seven days after they run on CBS stations. NBC’s litigation remains, but it had indicated that it was awaiting the result of the Fox case.

“While we are still disappointed that court felt that PrimeTime Anytime and AutoHop do not violate our copyrights or contract, Dish has been largely disabling AutoHop anyway,” the Fox spokesman said.

Dodge, however, said the case “has far-reaching significance, because it is the first to apply the Supreme Court’s opinion in Aereo to other technology.”

 

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