Fox Broadcasting V Dish Anytime Case Summary
Facts surrounding the case:
In 2012 Fox Broadcasting sued Dish Network for copyright infringement and breach of contract and filed a motion for a preliminary injunction to enjoin Dish from operating, distributing, selling, or offering Dish Anywhere, PrimeTime Anytime, AutoHop and any comparable features through the Hopper, a set-top box with digital video recorder(DVR) and video on demand capabilities.
Dish Anytime allows consumers to view television content from their home set-top box with digital recorder over the internet by use of any device with internet. Users can watch TV on their laptops, tablets or smartphones via a remote access to the recorded page or download an application for their tablet or smartphone. This service is only available to subscribers I good-standing.
PrimeTime Anytime is the Dish Service that allows subscribers to automatically record all …show more content…
primetime programs from the four major broadcasting networks (ABC, CBS, NBC, and FOX) These recordings are automatically deleted after several days.
Autohop has enabled a user who recorded prime time programs to automatically skip all commercials included in those programs.
Fox claimed that Dish breached three clauses of their contract. Dish had license from Fox that allows it to transmit Fox’s programing to its subscribers, it allowed to connect its subscribers’ video replay equipment. However, Dish cannot record, copy, duplicate and/or authorize the recording, copyright duplication (other than by consumers for private home use) or retransmitting of any part of Fox’s signal.
Issues:
• Does “Primetime anywhere”, which allowed a cable subscriber to set a single timer to record any and all prime time programming on four major networks, fall into copyright/preliminary injunction?
• Does “AutoHop” which allowed users to automatically skip commercials, fall into copyright/preliminary injunction?
Decision/results:
District Court for the Central District of California denied preliminary injunction. The ninth Circuit reviewed the district court’s decision with a very deferential standard of review, and affirmed the
Rationale/Reason:
District court held that Fox did not demonstrate a likelihood of success on most of its copyright infringement and contract claims. To obtain a preliminary injunction, Fox must demonstrate that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest.
The 9th Circuit held that:
“[T]he district court did not abuse its discretion in holding that the broadcaster failed to demonstrate a likelihood of success on its copyright infringement and breach of contract claims regarding the television provider’s implementation of the commercial-skipping products. As to a direct copyright infringement claim, the record did not establish that the provider, rather than its customers, made copies of television programs for viewing. The broadcaster did not establish a likelihood of success on its claim of secondary infringement because, although it established a prima facie case of direct infringement by customers, the television provider showed that it was likely to succeed on its affirmative defense that the customers’ copying was a ‘air use’.”
In addition, the Court mentioned that Fox did not own the copyrights to ads, and ads were not deleted from PTAT; the Court further noted that while Fox alleged the market harm resulted from the ad-skipping function, any analysis of the market harm should exclude consideration of AutoHop because ad-skipping did not implicate Fox's copyright interests.
“to establish a claim of copyright infringement by reproduction, the plaintiff must show ownership of the copyright and copying by the defendant” Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003)
What was the constitutional Philosophy Presented:
Constructionist, because the court interpreted the First Amendment of the constitution strictly and took revious cases into consideration when making its decision.
What constitutional theory was applied (there may be more than one) and why do you think it is so:
Ad Hoc Balancing Theory, because the court balanced between the Fox’s arguments of copyright infringements and Dish’s rights for invention of new programs and services for consumers’ needs.
Future impact:
After the 9th Circuit decision
The following comments were made: James Grimmelmann, a professor at the University of Maryland Law School, commented that the court would not count ad-skipping for purposes of copyright law, and predicted that it would impact on ad-supported content business.
Annette Hurst, an attorney for Dish said that the decision unequivocally showed that advertisements were a financing mechanism, but they were not part of the copyrighted work. Additionally, Corynne McSherry, an attorney of the Electric Frontier Foundation, made a statement that the holding was "a victory for fair use and consumer choice," and ensures that "technology makers can develop and offer new tools and services without fear of crippling liability where those tools and services are capable of substantial non-infringing uses." However, David Singer, an attorney for Fox, and other legal professionals pointed out that the result might be changed in succeeding trials because the Ninth Circuit applied a "deferential standard of review" to the request for a preliminary injunction, which required the plaintiff a very high bar to be
granted.
After the district court partial summary judgment decision
Fox spokesman Scott Grogin said the company welcomed Gee's contract rulings, and was disappointed by her copyright findings. "This case is not, and has never been, about consumer rights or new technology," Grogin said. "It's always been about protecting creative works from being exploited without permission." In a statement, Dish said it welcomed the ruling. "Consumers are the winners today, as the court sided with them on the key copyright issues in this case," the company said.
Mitchell Zimmerman, Intellectual Property Counsel at Fenwick West LLP expressed that “[t]he ruling included mostly wins, but some losses, for DISH with implications for other online services that enable time- and space-shifting by end-users.”
CBS Corp and Walt Disney Co's ABC had settled similar litigation in 2013, as part of broader settlements allowing Dish to broadcast the networks' programs. Similar litigation against Dish by Comcast Corp's NBCUniversal had been put on hold pending developments in the Fox case.
In Mitchell Zimmerman opinion, this decision “may be the final word in its assessment of these technologies, and may assume significant precedential authority”.
The New York State Bar Association’s Entertainment, Arts and Sports Law Blog, points out that this decision imply “that companies like DISH can innovate in ways that do not violate the Copyright Act. Those companies, however, must make sure that their own contracts do not prohibit them from making such advancements.” In the same line, Akerman's Marks, Works & Secrets blog advices that “Firms seeking to rely on DISH therefore may not only need to be cognizant of the physical design of their products and services, but also may need to ensure that their licenses for copyrighted content are carefully drafted.”
In 2012 Fox Broadcasting sued Dish Network for copyright infringement and breach of contract and filed a motion for a preliminary injunction to enjoin Dish from operating, distributing, selling, or offering Dish Anywhere, PrimeTime Anytime, AutoHop and any comparable features through the Hopper, a set-top box with digital video recorder(DVR) and video on demand capabilities.
Dish Anytime allows consumers to view television content from their home set-top box with digital recorder over the internet by use of any device with internet. Users can watch TV on their laptops, tablets or smartphones via a remote access to the recorded page or download an application for their tablet or smartphone. This service is only available to subscribers I good-standing.
PrimeTime Anytime is the Dish Service that allows subscribers to automatically record all …show more content…
primetime programs from the four major broadcasting networks (ABC, CBS, NBC, and FOX) These recordings are automatically deleted after several days.
Autohop has enabled a user who recorded prime time programs to automatically skip all commercials included in those programs.
Fox claimed that Dish breached three clauses of their contract. Dish had license from Fox that allows it to transmit Fox’s programing to its subscribers, it allowed to connect its subscribers’ video replay equipment. However, Dish cannot record, copy, duplicate and/or authorize the recording, copyright duplication (other than by consumers for private home use) or retransmitting of any part of Fox’s signal.
Issues:
• Does “Primetime anywhere”, which allowed a cable subscriber to set a single timer to record any and all prime time programming on four major networks, fall into copyright/preliminary injunction?
• Does “AutoHop” which allowed users to automatically skip commercials, fall into copyright/preliminary injunction?
Decision/results:
District Court for the Central District of California denied preliminary injunction. The ninth Circuit reviewed the district court’s decision with a very deferential standard of review, and affirmed the
Rationale/Reason:
District court held that Fox did not demonstrate a likelihood of success on most of its copyright infringement and contract claims. To obtain a preliminary injunction, Fox must demonstrate that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest.
The 9th Circuit held that:
“[T]he district court did not abuse its discretion in holding that the broadcaster failed to demonstrate a likelihood of success on its copyright infringement and breach of contract claims regarding the television provider’s implementation of the commercial-skipping products. As to a direct copyright infringement claim, the record did not establish that the provider, rather than its customers, made copies of television programs for viewing. The broadcaster did not establish a likelihood of success on its claim of secondary infringement because, although it established a prima facie case of direct infringement by customers, the television provider showed that it was likely to succeed on its affirmative defense that the customers’ copying was a ‘air use’.”
In addition, the Court mentioned that Fox did not own the copyrights to ads, and ads were not deleted from PTAT; the Court further noted that while Fox alleged the market harm resulted from the ad-skipping function, any analysis of the market harm should exclude consideration of AutoHop because ad-skipping did not implicate Fox's copyright interests.
“to establish a claim of copyright infringement by reproduction, the plaintiff must show ownership of the copyright and copying by the defendant” Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003)
What was the constitutional Philosophy Presented:
Constructionist, because the court interpreted the First Amendment of the constitution strictly and took revious cases into consideration when making its decision.
What constitutional theory was applied (there may be more than one) and why do you think it is so:
Ad Hoc Balancing Theory, because the court balanced between the Fox’s arguments of copyright infringements and Dish’s rights for invention of new programs and services for consumers’ needs.
Future impact:
After the 9th Circuit decision
The following comments were made: James Grimmelmann, a professor at the University of Maryland Law School, commented that the court would not count ad-skipping for purposes of copyright law, and predicted that it would impact on ad-supported content business.
Annette Hurst, an attorney for Dish said that the decision unequivocally showed that advertisements were a financing mechanism, but they were not part of the copyrighted work. Additionally, Corynne McSherry, an attorney of the Electric Frontier Foundation, made a statement that the holding was "a victory for fair use and consumer choice," and ensures that "technology makers can develop and offer new tools and services without fear of crippling liability where those tools and services are capable of substantial non-infringing uses." However, David Singer, an attorney for Fox, and other legal professionals pointed out that the result might be changed in succeeding trials because the Ninth Circuit applied a "deferential standard of review" to the request for a preliminary injunction, which required the plaintiff a very high bar to be
granted.
After the district court partial summary judgment decision
Fox spokesman Scott Grogin said the company welcomed Gee's contract rulings, and was disappointed by her copyright findings. "This case is not, and has never been, about consumer rights or new technology," Grogin said. "It's always been about protecting creative works from being exploited without permission." In a statement, Dish said it welcomed the ruling. "Consumers are the winners today, as the court sided with them on the key copyright issues in this case," the company said.
Mitchell Zimmerman, Intellectual Property Counsel at Fenwick West LLP expressed that “[t]he ruling included mostly wins, but some losses, for DISH with implications for other online services that enable time- and space-shifting by end-users.”
CBS Corp and Walt Disney Co's ABC had settled similar litigation in 2013, as part of broader settlements allowing Dish to broadcast the networks' programs. Similar litigation against Dish by Comcast Corp's NBCUniversal had been put on hold pending developments in the Fox case.
In Mitchell Zimmerman opinion, this decision “may be the final word in its assessment of these technologies, and may assume significant precedential authority”.
The New York State Bar Association’s Entertainment, Arts and Sports Law Blog, points out that this decision imply “that companies like DISH can innovate in ways that do not violate the Copyright Act. Those companies, however, must make sure that their own contracts do not prohibit them from making such advancements.” In the same line, Akerman's Marks, Works & Secrets blog advices that “Firms seeking to rely on DISH therefore may not only need to be cognizant of the physical design of their products and services, but also may need to ensure that their licenses for copyrighted content are carefully drafted.”