For the second time in less than a week, Dish Network is claiming legal victory against one of the big broadcasters. On September 18th, it was ABC, today it’s Fox. A federal judge Monday spared the satellite provider the preliminary injunction requested by Fox against its ad-jumping Hopper DVR services. As has become the norm in the various Hopper cases, the ruling by Judge Dolly M. Gee was filed under seal for the time being so confidential and proprietary info could be stripped out. While Gee denied the injunction she did indicate to the parties’ lawyers that she believed Fox’s case had merit and could be compensated with damages rather than agreeing to the broadcaster’s motion. “We disagree that the harms caused by Dish’s infringing services are completely compensable by damages, and as a result we are looking at all options. We will file a response in due course,” a Fox spokesperson told me. Dish took a much less nuanced approach in responding to Monday’s decision. “Today’s decision is the fourth in a string of victories for consumers related to our Hopper® Whole-Home DVR platform. DISH is pleased that the Court has sided again with consumer choice and control by rejecting Fox’s efforts to deny our customers’ access to the DISH Anywhere and Hopper Transfers features. We will continue to vigorously defend consumers’ right to choice and control over their viewing experience,” said Dish’s EVP and general counsel R. Stanton Dodge in a statement Monday. Today’s ruling comes from a hearing on the matter held back on April 19th.
In a separate arm of the case, the Ninth Circuit Court of Appeals In July ruled that Fox didn’t show that it was likely to win its case against the Hopper and allow Dish to keep selling it. In that instance, Fox was appealing a November 2012 ruling by U.S. District Court Judge Judge Dolly Gee who refused to block sales of the Hopper, even though she agreed with Fox that Dish has likely committed copyright infringement. In August of this year, Fox filed a brief with the Ninth Circuit Court of Appeals requesting a brand new review of the July 24 ruling to be heard by all the court’s judges
First introduced in May 2012, Autohop services allowed Dish subscribers to leap past commercials in programs that have been recorded off network TV via the PrimeTime Anytime service the day before. Earlier this year, Dish upgraded the service to what is now the Hopper. CBS, NBC and Fox have all filed copyright infringement suits against Dish to get the services stopped. Fox Broadcasting, Twentieth Century Fox Film Corp. and Fox Television Holdings, Inc. are represented by Richard Stone, Andrew Thomas, Amy Gallegos and David Singer of LA firm Jenner & Block and Paul Smith from the firm’s NYC office. Annette Hurst, William Molinski, E. Joshua Rosenkranz, Peter Bicks, Elyse Echtman, and Lisa Simpson from San Francisco’s Orrick, Herrington & Sutcliffe represent Dish Network.