It was a court order on summary judgments where everyone got something and use of the big Aereo ruling of last year went nowhere. “Plaintiffs’ motion for partial summary judgment is GRANTED in part and DENIED in part and Defendants’ motion for summary judgment is GRANTED in part and DENIED in part,” today said a heavily redacted and just-unsealed order from Judge Dolly Gee (read it here) in the 2 1/2-year legal battle between Fox Broadcasting and Dish Network.
Still, while both sides are claiming some degree of victory, especially Dish, a lot of this might be a dead-letter office already. Last week, both parties requested and the court agreed to have the overall litigation is stayed while Fox and Dish try again to hammer out a carriage deal. Their current agreement expires in October. Leading to either a deal or a trial eventually, the stay came after the January 12 order was written but before the two sides could finalize what was to be redacted once it was made public. Although given a pass this round, the like of the DVR ad-zipping AutoHop soon could be a non-issue between Fox and Dish. ABC and CBS already had the AutoHop dealt with in their respective latest deals with the satellite TV company last March and December.
With that in mind, it looks like Dish scored well in Gee’s order dated January 12. They certainly saw Fox knocked back on one of its major legal thrusts. In addressing one of the main elements of the case, the federal judge says Dish did not violate Fox’s copyright with its ad-zapping AutoHop DVR and Primetime Anywhere features. In fact, citing big differences in notions of unauthorized public performance of copyrighted programming, Gee knocks down Fox’s attempted use of one of last year’s biggest cases of technology and the broadcasters. “Fox contends that the Supreme Court’s recent decision in American Broadcasting Companies, Inc. v. Aereo, Inc. is a game-changer that governs the outcome of its copyright claims in this case,” Gees writes. “The Court disagrees.”
“Dish does not, however receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did,” Gee said. “Dish has a license for the analogous initial retransmission of the programming to users via satellite.” Going into Chapter 11 in November, the Barry Diller-backed tech company has essentially pulled the plug after the SCOTUS found against its arguments of use last June. For Dish, this court saw not the company but the consumers as the copyright protagonist. “Even when viewing the evidence in the light most favorable to Fox, the Court concludes that it is the Dish user, not Dish, who does the retransmitting,” notes the dense and frequently blacked-out 63-page order.
As it did before in getting traction in the case, Dish claimed it was all for the American public’s right to choice. “Consumers are the winners today, as the Court sided with them on the key copyright issues in this case,” said R. Stanton Dodge, Dish EVP and general counsel. “This decision has far-reaching significance because it is the first to apply the Supreme Court’s opinion in Aereo to other technology,” he added. “We will continue to vigorously defend consumers’ rights to choice and control over their viewing experience.”
Of course, while “disappointed” in some aspects of the order, Fox also found a silver lining today in Gee’s allowing it to move forward with its breach-of-contract claims. The federal judge also saw liability on copies of programming that Dish makes for what it has said are quality-control issues. “Welcoming” that aspect of the summary judgment, Fox said in a statement after the order was released that consumers were not what took Dish to court for in May 2012. “This case is not, and has never been, about consumer rights or new technology,” Fox said today. “It’s always been about protecting creative works from being exploited without permission. Especially since Dish uses our programming to charge for a premium programming package and inflated DVR box fee.”
Peter Bicks, Annette Hurst, William Molinski, Lisa T. Simpson, Elyse Echtman and Joshua Rosenkranz of Orrick Herrington & Sutcliff LLP are representing Dish with Durie Tangei LLP’s Mark Lemley and Michael Page. 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.