Fox Broadcasting v. Dish Network: California Court dismiss copyright claim against time and place-shifting Dish’s streaming service

By Béatrice Martinet Farano

On 12 January 2015, the Central District of California found that, despite the Supreme Court’s recent decision in Aereo, Dish Network’s streaming services did not infringe Fox’s copyrighted content. However, the Court found that some of these services could have breached the contractual provisions of the retransmission agreements entered into by the parties.

In this case, Fox sued Dish Network for copyright infringement and breach of contract after Dish started offering its subscribers a number of services allowing them to stream and record for later viewing Fox’s programming at any location (Dish Anywhere, Dish Prime Time Anytime and Hopper Transfers), while automatically skipping Fox’s Commercials (AutoHop feature).

While Fox acknowledged that Dish had a license over its programs and was therefore authorized to broadcast its programs to its subscribers, Fox challenged the ability for Dish to allow its subscribers to copy such programs (for time and/or place shifting purposes) without its express authorization. Particularly, Fox argued that, pursuant to the Supreme Court’s recent decision in American Broadcasting Companies, Inc. v. Aereo, Inc. (see TTLF Newsletter No 3/2014 p. 14), such retransmission has to be considered an unauthorized public performance which constitutes copyright infringement.

The Central District of California did not follow this reasoning. First, the Court found that differently from the situation in Aereo, Dish actually had a license over the content that was distributed to its subscribers.

Rather than giving subscribers access to content without authorization (like Aereo), Dish was therefore merely allowing its subscribers to view the content they had already paid for on a different device. Such time and place-shifting authorization, the Court said, could not be analyzed as an unauthorized public performance. Moreover, the Court found that it was Dish’s subscribers, rather than Dish, who had copied and transmitted the program. Therefore, Dish could not directly infringe Fox’s copyrights. Likewise, the Court found that Dish could not be secondarily liable, since the copying of these programs by Dish subscribers for their own non-commercial use was protected fair use, pursuant to the seminal decision of the Supreme Court in Sony Corp v. Universal (464 US 417 (1984).

With respect to the AutoHop feature – allowing customers to automatically skip commercials while watching pre-recorded content – the court considered that because AutoHop itself did not copy any Fox content, it did not infringe Fox’s copyrights.

While the decision was a broad win for Dish on the copyright front, the Court however found that some of these services or feature did breach some of the contractual provisions entered into by the parties including the “no copying” provision of an earlier 2002 Retransmission Consent Agreement and Fox’s exclusive reproduction right. Following the court’s decision, the parties agreed to stay the case while they attempt to negotiate a settlement.

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