Dish has won another battle in its ongoing war with Fox over whether or not its ad-skipping software is legal: A panel of judges upheld Los Angeles district court Judge Dolly Gee's ruling from last fall, when she threw out Fox's injunction request.
Specifically, Gee ruled that Fox hadn't proven that Dish was making copies of Fox's shows, though she allowed that the company had progressed beyond another recently litigated technology—Cablevision's remote storage DVRs. The case will be allowed to continue without any preliminary action from the law, though Fox will doubtless keep up the pressure on the MSO.
Fox endeavored to tell the public that the ruling was neither just nor a setback. "We are disappointed in the court’s ruling, even though the bar to secure a preliminary injunction is very high," said the network in a statement. "This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly."
This is a bad sign for Fox, which is essentially the proxy for the entire community of IP rights-holders in the television world in this case. No one in the ad-supported TV community is fond of the Hopper, a chunk of software that allows viewers to skip all the ads in a program with the click of a button. But Dish is arguing that the technology is not legally different from the fast-forward button on a VCR. Indeed, the most significant material way in which it differs from the Cablevision storage system, at least, is in terms of sheer size: Dish subscribers can hold nearly a week's worth of TV on their DVRs and watch it all commercial-free.
"Dish is pleased that the Ninth Circuit Court of Appeals has affirmed the district court's 2012 order denying Fox's preliminary injunction motion. In so doing, the courts continue to reject Fox's efforts to deny our customers' access to PrimeTime Anytime and AutoHop," said Dish evp and general counsel R. Stanton Dodge.
Dish has been on a serious charm offensive with the cable-subscribing public of late; it's offering free service to everybody on a Southwest flight and has positioned itself as the consumer-friendly brand in a sea of penny-pinching Scrooges. The Hopper (and Sling, its service that allows viewers to take their subscription with them when they travel and potentially watch out-of-zone sporting events, among other verboten activities) have been big hits with consumers even as they raise network hackles.