Fox Takes New Tack in Hopper Legal Battle

Files New Request for Injunction Focusing on New Internet Streaming and Recording Functions, Rather Than Ad-Skipping
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Fox has again asked a California court to block Dish's Hopper DVR, but this time it's not focusing on the ad-skipping function, and is instead zeroing in on new iterations that stream and record programming for Internet, out-home viewing. The programmer maintains those aspects clearly violate Dish's contract with Fox, as well as copyright law.

According to a copy of the petition obtained by Multichannel News and filed Thursday (Feb. 21) in the U.S. District Court for the Central District of California, Fox is asking for an injunction against both the 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 -- both new functions announced since its initial injunctions were denied last year by the same court, then a federal appeals court..

"Dish's licensing agreement with Fox gives Dish only the limited right to retransmit Fox's live broadcast signal over Dish's satellite television distribution system," according to Fox and explicitly prohibits the DBS provider from authorizing copying that programming for out-of-home use.

In filing the new request, Fox is looking to capitalize on Dish's announcement last month of its Dish Anywhere mobile app that allows the second-generation of Hooper set-tops to "watch live and recorded television anywhere on Internet-connected tablets, smart phones and PCs at no additional charge."

That, according to the petition, is a clear violation of Dish's license agreement with Fox "no matter how one looks at the issue," as well as copyright infringement.

Fox also pointed to the decision in Fox vs. Barry Diller's Aerero service, which came after Fox's initial injunction requests against Dish had been denied. In that case, a court enjoined that service, said Fox, and affirmed that "retransmitting copyrighted broadcast TV over the Internet without permission is copyright infringement because it violates the copyright owner's exclusive right to publicly perform the programs, which are copyrighted works."

Fox contends that any "purported" right Dish asserts to place shift programming does not apply because it is not a consumer. "It is not 'consumer place-shifting' when Dish retransmits Fox's signal over the Internet, in violation of its license agreement, to get more people to subscribe to Dish Network," Fox said. "It's piracy."

Fox also says another recent addition, Hopper Transfers, makes its case for infringement. At the same time, Dish announced the streaming service, it unveiled Hopper Transfers, which allows subs to view recorded broadcasts on iPads for "on the go' viewing. It is that move of programming out of the home that Fox says is a violation. "Dish's license agreement with Fox prohibits Dish from authorizing the copying of Fox programs 'other than by consumers for private home use.'"

Fox avers that unauthorized streaming of its programming over the Internet will cause it irreparable harm, which is one of the tests for an injunction, a test Fox's earlier claims did not meet, according to the same court. Fox must also establish the likelihood that it will succeed on the merits of its argument and that an injunction is in the public interest.

Among the harms Fox cites are 1) increased piracy risk to its programming; 2) devaluing that programming in negotiations over digital download deals with Amazon or itunes; 3) unfairly competing with Fox's own proprietary Internet distribution of web sites and mobile apps; 4) and that Internet viewing will siphon off viewers from traditional channels measured by Nielsen's C3 metrics, on which advertisers rely to set rates.