Maybe Fox should stop digging before the Dish-shaped legal hole it’s already excavated gets any deeper. In July, Fox lost an appeal to the Ninth Circuit Court of Appeals seeking to overturn a lower-court ruling denying the network a preliminary injunction against Dish Network’s Hopper DVR with the Auto-Hop ad-skipping feature. Other members of the studio/network club were furious with Fox for pursuing the appeal, I’m told, for fear of precisely what happened: In its opinion, the Ninth Circuit explicitly embraced the reasoning of the Second Circuit in its ruling in the 2008 Cablevision remote DVR case, effectively extending that very troublesome (for the neworks) precedent to another federal circuit and lowering the chances that the U.S. Supreme Court might some day overturn it.
This week, Fox lost another one when a federal district judge in California (which is part of the Ninth Circuit) declined its request for a separate preliminary injunction against the Hopper With Sling DVR that allows users to stream recorded shows to themselves for viewing on mobile devices. The text of the judge’s opinion has not yet been released, pending redaction of confidential information, but Fox said in a statement that it is considering another appeal, which would again go to the Ninth Circuit.
Nobody brings a lawsuit expecting to lose, of course, but the net result of the networks’ repeated legal defeats against Dish, Aereo, Cablevision and other service providers is to put in place a growing body of case law expanding consumers’ rights to time-shift, place-shift and format-shift TV content they’re entitled to receive.
So long as those legal questions remain ambiguous, service providers’ ability to offer those procedures remain subject to negotiations with rights holders, where the networks have considerable leverage to demand payment. Once those activities become a matter of legal rights vested in consumers, however, that leverage can dissipate quickly.