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Dish can keep streaming TV anywhere after Fox’s Aereo argument fails

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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(s 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(s dis), 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:

Dish Anywhere

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6 Responses to “Dish can keep streaming TV anywhere after Fox’s Aereo argument fails”

  1. Georgey

    This article is just wrong. The question is whether the lower court’s decision that any damage Fox incurred could be compensated by money damages. The appellate court ruled that it was not an abuse of discretion for the district court to conclude that Fox could be paid for any such damage. There is absolutely nothing in this decision touching on DISH’s ultimate liability.

  2. Keith,

    One of the problems with your analysis is that the court’s decision regarding DISH’s cloud-based DVR is that it apparently did not turn on the merits (or lack thereof) of what DISH is doing, but rather the legal requirements for obtaining a preliminary injunction, which includes evidence of harm. Your article contains the basis for the court’s decision – unrelated to the merits of what DISH is doing – that the lower court’s finding of insufficient harm to justify granting a temporary injunction was not in error. There was no discussion, let alone a decision, on the merits of what DISH is doing. From a procedural perspective, it is similar to the Aereo case that reached the Supreme Court (it too was at the temporary injunction stage), but involves a very different fact pattern (e.g., the existence of a contractual relationship between FOX and DISH allows FOX to monetize any potential harms from a breach of contract by DISH. As for your comparison to TV Everywhere, I believe there is a difference in how TV Everywhere operates vs. DISH’s “DVR service.” Note that I am not saying that what DISH is doing is right (and knowing DISH’s history it certainly may be exceeding the bounds of its licensing agreement with FOX), but that is for determination at trial, and most certainly was not the basis of the court’s decision at the preliminary injunction stage.

  3. Keith Hawn

    marc, marco and steveo – all 3 of you are right that DISH “pays” Fox but wrong that this drove the court’s ruling in this case. All TV Everywhere introductions – ALL OF THEM – have required new legal agreements between cabler and program owner. Ever notice why TV Everywhere keeps coming out one cable co at a time, for just a handful of programs at a time, over the past 5 years?

    In this case, DISH is trying to get away with its cloud-based DVR as “no change” to current distribution. Fox is right to challenge it – i.e., “this isn’t what we agreed you (DISH) were paying for.”

    This decision should not survive an appeal.

  4. Your article glosses over (but does acknowledge) a huge difference between DISH and Aereo, in that DISH is paying license fees to FOX (and other broadcasters) for the right to retransmit its programming. Aereo, by contrast, had no license or permission from the broadcasters to use their programming (signals), nor was it paying any licensing or copyright fees. That also was a distinguishing characteristic between Aereo and what Cablevision was doing with its remote DVR service in a 2nd Circuit Court case. What DISH is doing is far more similar to what the circuit court allowed in the Cablevision proceeding than what Aereo was doing.

  5. big difference though. Dish pays the content providers something – even if it does let people stream it anywhere. Aereo basically just let people view the stuff that they weren’t paying for.