Fox V Dish Summary Judgment Rulings

Mixed Outcomes on Copyright and Contract Issues Re: Volition, Time- and Space-Shifting, Intermediate Copying and Commercials-Skipping

In a complex opinion addressing intermingled copyright and contract issues, a Federal District Court has wrought an amalgam of rulings in the clash between a major television network and a leading pay television provider whose innovative technology facilitates unauthorized uses of broadcast content. Fox Broadcasting Co. v. DISH Networks LLC (Case No. CV 12-4529), [Redacted] Order (C.D. Cal., Jan. 20, 2015).

The ruling included mostly wins, but some losses, for DISH with implications for other online services that enable time- and space-shifting by end-users. Judge Dolly M. Gee of the Central District of California granted partial summary judgments that upheld DISH's right under copyright law to offer technologies that allow users to transfer copies of lawfully-stored programming to their own mobile devices and to automatically record full prime time lineups and then skip commercials. On the other hand, Judge Gee held that DISH breached its license agreement with Fox in offering the copy-transferring service, and had no fair use right to copy recordings for the purpose of implementing its technologies.

This Alert will focus on the copyright issues. The case involves several technologies offered by DISH, all designed to make it easier and more convenient to access TV programming for later (or elsewhere) viewing. The District Court decision follows its earlier denial of Fox's request for a preliminary injunction, Fox Broadcasting v. Dish Network, 905 F.Supp.2d 1088 (C.D. Cal. 2012), and the Ninth Circuit's decision affirming that denial, Fox Broadcasting v. Dish Network, 747 F.3d 1060 (9th Cir. 2013).

The key copyright holdings and reasoning were as follows:

Aereo and volition. The Supreme Court's recent decision in American Broadcasting Company v. Aereo, Inc., 134 S.Ct. 896 (U.S. 2014), has caused controversy over whether the Supreme Court had sub silentio overturned a long line of cases holding it is not direct copyright infringement to provide an automated technology that consumers use to engage in arguably infringing acts, when the provider does not engage in the volitional conduct causing the infringement. The volition" doctrine had been widely accepted, and the District Court herein what is probably the first post-Aereo case to consider the issueheld that Aereo did not jettison by implication" the...