So much for clarity.
Three weeks after the Supreme Court shut down Aereo for streaming TV over the internet without permission, a court in California has given the green light for satellite TV company Dish to continue selling a service that does much the same thing.
In a short ruling issued on Monday, the 9th Circuit Court of Appeals refused a request by Fox to shut down “Dish Anywhere,” which lets consumers record the broadcasters’ shows on a DVR and then beam them over the internet to a computer or mobile device.
In its ruling, the 9th Circuit upheld a lower court’s finding that Fox was unlikely to suffer serious harm if Dish Anywhere was not shut down pending a copyright trial. The four-page decision is highly technical and avoids entirely the Supreme Court’s Aereo ruling — which Fox had invoked to say that Dish was engaged in an unauthorized public performance.
The new ruling is likely to further muddy the water over what companies can do with content owned by the likes of Fox and ABC, which broadcast their shows for free over the airwaves but also collect retransmission fees from pay TV providers like Dish.
Services like Aereo and Dish Anywhere fall into a legal gray area because they provide cloud-based DVRs that are controlled by consumers, meaning they should (in theory) fall outside the law that restricts companies from retransmitting broadcast signals to the public.
The courts’ explanations, however, have failed to make it clear why one service is legal and the other is not. In the closely-watched Supreme Court case, a 6-3 majority ruled that Aereo’s internet streams were “public” but glossed over the reasons why this was the case — leading Justice Antonin Scalia to complain in dissent of “an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.”
In the Dish case, meanwhile, the company did have a license to retransmit signals via satellite, but did not have the broadcaster’s permission to offer a remote DVR tool, which is why Fox was seeking an injunction to shut down Dish Anywhere. And given the technical nature of the 9th Circuit ruling, it’s not clear why Dish Anywhere is legal and Aereo is not.
The new California ruling is another in a series of victories for Dish, which has also prevailed over ABC in court over its Hopper DVR, which lets users skip over commercials.
Here’s the 9th Circuit ruling via the Hollywood Reporter: