Fox Broadcasting Co. v. Dish Network

Because the consumer, not Dish Network as the programmer, is the most significant cause of copying and storing live television, the district court did not abuse its discretion by denying a motion for preliminary injunction.

Dish Network ("Dish") retransmits Fox Broadcasting Company's ("Fox") broadcast signal. Under their 2002 contract, Dish was not allowed to "distribute" Fox programs on a "video-on-demand" basis, or "record, copy, duplicate and/or authorize the recording, copying, duplication…or retransmission" of Fox's signal. The contract was updated in 2010 to add the “necessary condition” that Dish "disable fast forward functionality during all advertisements.” In March 2012, Dish released the “Hopper” and “Joey,” a set of programs that allows users to record programs to watch later, along with PrimeTime Anytime, which allows users to record prime time shows for later viewing. Shows are automatically deleted after eight days. In May 2012, Dish introduced AutoHop, a program that allows users to skip commercials automatically. To skip commercials, Dish's technicians created "quality assurance" copies of the shows and digitally marked the start and end of commercials. When AutoHop is enabled, the commercials fast forward based on these digital marks. AutoHop does not delete the commercial, nor does AutoHop enable automatically. Fox sued Dish following the release of these four features, asking for a preliminary injunction on the basis of alleged copyright infringement and breach of contract. Fox alleged that Dish's creation of the quality assurance copies violated the portion of the contract that prohibited duplication of programs. The district court denied Fox's motion, finding that Fox had not demonstrated a likelihood of success on the merits, nor had Fox demonstrated irreparable harm. The Ninth Circuit held that the district court did not abuse its discretion in denying Fox's motion for a preliminary injunction. The panel found Fox was not irreparably harmed, nor would its case succeed on the merits, and Dish proved that its customers were using Fox's broadcasts under "fair use.” AFFIRMED.