Fox says it is disappointed with an appellate-court ruling Wednesday morning that rejected the network’s attempt to immediately shut down Dish Network’s PrimeTime Anytime and its ad-skipper Hopper technologies.
In a major blow to TV networks, the three-judge panel in San Francisco agreed with a lower-court decision that Fox hadn’t demonstrated that the Hopper violates Dish’s contract with Fox — especially as it concerns how it can air Fox programming especially on DVRs.
The court said it did not feel the Hopper would create enough “irreparable harm” to warrant issuing a preliminary injunction
"We are disappointed in the court’s ruling, even though the bar to secure a preliminary injunction is very high,” said Fox in a statement. “This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly."
The court also questioned Fox’s contention that the ad-skipping permitted by the Hopper amounted to a violation of Fox’s copyright for its TV shows. Agreeing with the lower court, it said that because Fox doesn’t own the copyrights to the commercials on its telecasts, it can’t use the skipping of commercials to argue that the skipping amounts to a fair use violation.
As for PrimeTime Anywhere, it agreed with the lower court that any questions about the legality of temporary copies that PrimeTime Anywhere creates of Fox programs — making them available for later playback — were better handled through monetary damages.
While the appellate court said Fox’s claims that Dish violated its contract for airing Fox shows could have some validity, it didn’t warrant an injunction. While it was convinced that PrimeTime Anywhere was not exactly a video-on-demand service, the court felt it was “dubious” about Dish’s position that it was actually different.
Dish said it was pleased by the ruling.
“DISH is pleased that the Ninth Circuit Court of Appeals has affirmed the district court’s 2012 order denying Fox’s preliminary injunction motion,” R. Stanton Dodge, EVP and general counsel, said in a statement. “In so doing, the courts continue to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop — key features of the Hopper Whole-Home HD DVR.
“This decision is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control.”
The Fox effort to stop Dish from employing PrimeTime Anytime is one of two courts where the fight is playing out.
In federal court in New York, a court is hearing a suit https://www.thewrap.com/tv/article/fox-sues-dish-over-ad-skipping-auto-hop-41526 filed by Dish seeking a ruling the technology is allowed and by CBS and NBC, seeking to stop Dish from using the technology.