The Ninth Circuit Court of Appeals may have nixed Fox again today in its efforts to shut down Dish Network’s ad-zapping DVR service, but the network still sees victory down the line. “We are disappointed in the decision but recognize that preliminary injunctions are rarely overturned on appeal,” said a Fox Networks Group spokesperson after the court today unanimously rejected Fox’s petition of last August. “That said, the ruling was based on a factual record from more than a year ago. Now that we have gathered more evidence, we are confident that we will ultimately prevail on all of our claims.” The case goes on in trial court. In the meantime, Dish, which has had a good run with the courts on the Hopper issue of late, once again wrapped itself in the flag of standing up for consumers. “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,” the satcaster’s General Counsel R. Stanton Dodge said of one of the many broadcaster suits against his company. “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.”
Late last summer, Fox filed a brief with the Ninth Circuit to be heard by all the court’s judges requesting a brand-new review of the July 24 ruling affirming a lower court decision. That previous ruling had rejected Fox’s request for an injunction against the Dish’s Hopper. In July, the panel from the Ninth Circuit also said that the Dish itself was not infringing on copyright because the services’ users are actually the ones making copies of the programming in question and that’s allowed under fair use. The July review was from Fox’s appealing of 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.
Fox is 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.