When it lost a summary injunction back in September, the network said it wasn’t done trying to get Dish Network’s Hopper service shut down and today ABC took another swing at it. In a brief dated November 12 and filed today (read it here) with the Second Circuit Court of Appeals, ABC and Disney Enterprises went after the satellite provider’s ad-jumping DVR service again. The thrust of the network’s new appeal is that U.S. District Judge Laura Taylor Swain not only misunderstood the market harm the service poses but misinterpreted copyright law in her ruling earlier this fall that it was not Dish but the consumers, by choosing what to record, who were actually engaged in the process of making copies of programming that they then could watch ad-free later. In its heavily redacted brief, ABC says that “by exercising exclusive control over the copying process and by operating the service to record” with the Hopper’s Primetime Anywhere and AutoHop services, it is Dish who is really in control of the process not the consumer.
“In this copyright and breach of contract action, ABC seeks to halt DISH’s ongoing copying of ABC’s entire lineup of primetime programming for on-demand, commercial-free playback. This massive copying effort not only targets the advertising that generates revenue through normal DVR viewing; it also takes aim at the many platforms on which ABC authorizes the sale of on-demand and commercial-free versions of its programming,” says the 72-page brief. “In short, at the same time that ABC has carefully constructed a distribution strategy to offer viewers nearly every on-demand and commercial-free viewing option that modern technology permits, DISH has set out to undermine each element of that strategy,” it adds.
Across the country, the networks are the underdogs in this fight. The East Coast loss by ABC earlier this year was mirrored by another West Coast injunction loss by Fox in its battle against the Hopper back in November 2012. A federal appeals court reaffirmed that Fox loss in late July of this year and again in a separate rule by Judge Dolly M. Gee in late September.
In this case, Williams & Connolly LLP’s Kevin Baine, Stephen Fuzesi, William Vigen Stanley Fisher, Thomas Hentoff, and Julia Pudlin are representing ABC. While Dish is represented by Orrick Herrington & Sutcliffe LLP’s Elyse D. Echtman, Peter Bicks, Lisa Simpson, E. Joshua Rosenkranz and Annette Hurst with Mark A. Lemley and Michael Page of Durie Tangri.