A federal appeals court has denied Fox's appeal of a lower court's refusal to grant Fox a preliminary injunction against Dish's use of the Prime Time Anytime and AutoHop functions, saying the lower court did not abuse its discretion in not granting the injunction against the two “marsupial-inspired products,” as Judge Sidney Thomas wrote in the opinion for the Ninth Circuit.
Fox is charging copyright infringement and wanted the district court to block the AutoHop ad-skipping and Prime Time Anywhere functions while it decided the underlying case. That court denied the injunction, as did a three-judge panel of the Ninth Circuit back in July. Fox appealed that to the full court (en banc review), which has now signaled it isn't going to grant it either.
“With this decision, the Court continues to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home HD DVR," said DISH EVP and General Counsel, R. Stanton Dodge. “This 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.”
“We are disappointed in the decision but recognize that preliminary injunctions are rarely overturned on appeal. That said, the ruling was based on a factual record from more than a year ago," Fox said in a statement. "Now that we have gathered more evidence, we are confident that we will ultimately prevail on all of our claims.”
Fox has taken aim at both the ad-skipping feature as well as Hopper's retransmission of live broadcasts over the Internet to PCs and mobile devices, and the feature that records the programs so they can be transferred to iPads for mobile viewing.