Fox Pitches Ninth Circuit On Dish Injunction

dfergie

Proud Staff Member
Original poster
Staff member
HERE TO HELP YOU!
A panel of the Ninth Circuit Court of Appeals held oral argument in Fox's ongoing copyright challenge to Dish's time-shifting, web-shifting, ad-skipping service.
x was looking to use broadcaster's recent victory in the Aereo case in the Supreme Court to buttress his argument, including pointing out that Dish had argued that it was merely an equipment provider, an Aereo argument that the Supremes rejected. It also pointed out the Supremes had refected Aereo's argument (which it said was Dish's as well) that a performance was not public under the Copyright Act if each sub watches a unique stream.

Fox's lawyer, Richard Stone, argued that Aereo was also essentially about attaching a Slingbox to a DVR. But that got some pushback.

One judge countered that it was "completely different technology" and said that while that was the argument, "the Supreme court has all sorts of caveats in the opinion about how this was about Aereo and nothing else and a lot of the ‘nothing elses’ seem to be pretty similar to Slingbox.

Dish's lawyer, Josh RosenKranz, said it was "pretty clear" in the record that the "sling" technology introduced no new capabilities or was uniquely threatening. "There is no difference between the Sling box and the sling features at issue in this case. Dish said digital portability has been around for almost a decade, and Fox did not complain until now. Dish says that if Fox has not suffered any harms in the previous nine years that the technology was available, the court was well within its right not to grant an injunction based on irreparable harm.

Source & More: multichannelnews.com
 
If fox gets an injunction to stop sling technology and auto hop from working until the court case is settled a bunch of customers are going to be mad. I will be one because the single sole reason for me to upgrade into the hws is the sling tech.
 
Hasn't other attempts to block the technology already been thrown out? Fox is grasping at straws.

There have been attempts that were attempted. The difference now is that there is a SCOTUS decision that has some relevance. I don't know if Fox will be successful or not, but they can make a strong argument. Dish owned equipment(leased to consumers) is streaming near-live Fox broadcasts to consumers.(Aereo owned equipment(leased to consumers) was streaming near-live broadcasts to consumers.) Multiple consumers can stream the same near-live broadcast at the same time.(Aereo or Dish). The SCOTUS decision was that since it was Aereo's equipment, Aereo was in fact "performing" the works. Since multiple people can stream the same broadcasts at approximately the same time, SCOTUS considered it a "public performance".

There are some factors that are different, such as Aereo's equipment was all located on Aereo's property while Dish's equipment is on the consumer's property. There is probably no disputing the fact that multiple people can and probably do stream Fox programming at approximately the same time. I don't believe there was anything in the SCOTUS decision that stated that Aereo's equipment being on their property was a factor in whether Aereo or the consumer was the party "performing". Fox will argue that ownership is important, not location. Dish will argue that location is important.

SCOTUS said specifically that their decision would only apply to Aereo and Aereo "like" situations. They did a poor job of defining "Aereo like", so we will probably see a lot more litigation until this decision is better defined.
 
There have been attempts that were attempted. The difference now is that there is a SCOTUS decision that has some relevance. I don't know if Fox will be successful or not, but they can make a strong argument. Dish owned equipment(leased to consumers) is streaming near-live Fox broadcasts to consumers.(Aereo owned equipment(leased to consumers) was streaming near-live broadcasts to consumers.) Multiple consumers can stream the same near-live broadcast at the same time.(Aereo or Dish). The SCOTUS decision was that since it was Aereo's equipment, Aereo was in fact "performing" the works. Since multiple people can stream the same broadcasts at approximately the same time, SCOTUS considered it a "public performance".

There are some factors that are different, such as Aereo's equipment was all located on Aereo's property while Dish's equipment is on the consumer's property. There is probably no disputing the fact that multiple people can and probably do stream Fox programming at approximately the same time. I don't believe there was anything in the SCOTUS decision that stated that Aereo's equipment being on their property was a factor in whether Aereo or the consumer was the party "performing". Fox will argue that ownership is important, not location. Dish will argue that location is important.

SCOTUS said specifically that their decision would only apply to Aereo and Aereo "like" situations. They did a poor job of defining "Aereo like", so we will probably see a lot more litigation until this decision is better defined.

The big difference is that Dish already pays for retransmission rights. So the customer already has the right to, and broadcasters are already being paid for, the content.

Once I have it on my hopper I can turn around and do whatever I want with it for my own personal use. I can save it on my DVR or record it with my old VCR (time shifting), I can take that VCR tape with me to my cabin, RV, vacation home to watch or I can use my stand alone sling box to stream it to myself at any of those locations or even to my backyard that doesn't have a tv (place shifting).

So attacking the hopper with sling is attacking decades if precedent related to consumer fair use. The supreme court's ruling on Aereo was wrong as to the law and certainly opens the door for lower courts to run with it. But, I don't see it happening. There's too much precedent in the opposite direction.


Posted Via The FREE SatelliteGuys Reader App!
 
The big difference is that Dish already pays for retransmission rights. So the customer already has the right to, and broadcasters are already being paid for, the content.

I agree with you in principle. However, according to the Aereo decision, specifically related to near-live transmission, the consumer is not the one transmitting the signal, the equipment owner(Dish) is. So, if "Dish" is transmitting the signal to multiple people at the same time, they need a license for that transmission. I have not seen the contract between Fox and Dish, but according to Fox they only license Dish for the broadcast to the consumer. Fox states that they specifically exclude the rights to broadcast via the internet. If "Dish" is the party transmitting, and "Dish" does not have a license for that particular transmission, they would be violating the law. The Hopper with Sling is unique with regard to precedent, because usually the consumer does not own the equipment.

I do agree with you that what Dish is doing should be legal. The SCOTUS decision leaves a lot of room for Fox to make compelling arguments against them.
 
Fox considers Nielsen the Gold Standard, yet Fox is about to drop Nielsen for Rentrak

Fox Stations Poised To Drop Nielsen, Go Exclusively With Rentrak

http://www.mediapost.com/publicatio...ons-poised-to-drop-nielsen-go-exclusivel.html

by Joe Mandese, Jun 30, 2014, 7:31 AM

With its long-term contract with Nielsen set to expire today, the Fox Television Stations Group was preparing to become the first network-owned TV station group to walk away from Nielsen in decades. While sources say negotiations continued over the weekend, the two companies were characterized as being at loggerheads over some key contractual and methodological issues, and that the Fox stations were considering dropping Nielsen altogether and instead using rival TV ratings service Rentrak exclusively.
 
Wonder why there are old-school Nielson and Rentrak families to begin with.

Technology has evolved enough to gather ratings info much more accurately/thoroughly/easily.
 
Not sure how it reports, but all of dish networks digital equipment already tracks viewing habits. It's all anonymous, and you have the right to opt out of it, but it is tracked currently. My question, is it tracked for dish purposes, or is it tracked for the networks.
 
That was the point I was getting at.

Unless you are a cord cutter, ratings info is easy to come by, why continue to use an antiquated system?
 
  • Like
Reactions: jbrelish
My guess. And only a guess, is that dish uses the information for themselves when it comes to contract negotiations. I can't back this up but it would make sense, for them to be able to have ammo for the negotiations. Also, the networks probably do not want to charge all the money they charge, to turn around and have to pay money back to the companies such as dish, then directv, then comcast, etc to get that data. They can pay 1 fee to a company such as Nielsen. Again, this is all just guessing, and is really based on zero evidence. Just what I have read, and most of what I read was from here. But it makes sense. Open to other suggestions.
 
Dish could just agree to sell to FOX all the DVR viewer information and satisfy all their concerns....

Ha. And go against what dish always says. "We do not and will not ever sell your private information to a 3rd party company". Although it could help lower tinge bills if dish did sell this information to all the networks, I wouldn't mind them knowing what I watch and record, if it helped with the bill
 

Hopper upgrade...Joeys losing connection

Loss of all signals in PR

Users Who Are Viewing This Thread (Total: 0, Members: 0, Guests: 0)

Who Read This Thread (Total Members: 1)