Allowing Dish Network to continue retransmitting TV programs without a license to subscribers’ computers and mobile phones through its Hopper device could “destabilize” the broadcasting industry, said Richard Stone, attorney for Fox Broadcasting 4/19, urging a California federal judge to shut the new “Dish Anywhere” service down.
In the hour-long hearing, Stone warned U.S. District Judge Dolly M. Gee in LA of dire consequences if she denies Fox’s bid for a preliminary injunction in its suit alleging Dish breached a licensing agreement with the network and infringed its copyrights. Fox’s attorneys argued that the features violate retransmission agreements as well. Gee issued no decision on Fox’s motion for a preliminary injunction, but is expected to in the coming weeks.
Dish Anywhere, introduced in January, features Slingbox technology to allow subscribers to watch broadcast signals remotely.
Dish’s AutoHop feature, introduced last year, already got legal action from Fox and other broadcast networks. AutoHop offers subscribers primetime content with the commercials automatically skipped.
In a decision last year, Gee refused to immediately stop that feature, and the networks are appealing that decision.
On its Anywhere feature, Dish noted that Fox and other broadcasters have only recently challenged the technology, which first introduced by Slingbox seven years ago.
“It is the exactly the same transmission technology” in the standalone Slingbox and in the Dish offering, Variety quoted Dish attorney Annette Hurst as saying.
Questioning attorneys for Dish, Judge Gee focused on language in their Fox contract that restricts the use of its signal to “private home use,” and noted that subscriber agreements contain similar language.
Dish also suggests that Fox is contradicting itself. In a recent filing, it noted that in appealing the recent Aereo decisions, Fox’s attorneys wrote that “a subscriber who records a program in his den and watches it in his bedroom is not transmitting a program to the public’ he is transmitting it to himself. That is a private performance.”
Fox argues that the case is not even a “hard” one to decide: Its license agreement with Dish says that it cannot retransmit Fox’s live broadcast signal over the Internet, “and cannot allow anyone else to do so.”
Dish’s case is different from Aereo in that Dish has contract agreements with the broadcasters in place, while Aereo does not.
Gee then asked Stone whether Fox, if it is successful against Dish, will seek to stop technology like Slingbox. “No,” Stone said, arguing that there is a difference.
Fox argues that while Dish Anywhere uses Sling technology, it is not a standalone Slingbox, which “does not require an ongoing monthly subscription with Dish or any other service provider.” A reason the networks have yet to challenge Slingbox is that it has yet to gain widespread popularity, while the Anywhere service is already in 2 million homes.
“Sling technology is just Dish’s way of processing a video signal so it can be transmitted over the Internet,” Fox said in its brief. “It is not a magical new invention that allows service providers to deliver live broadcast television over the Internet without a license.”
RBR-TVBR observation: We agree that AutoHop technology is unfair to broadcast networks—especially when it is not offered for cable networks. However, the TV Everywhere industry-wide initiative has more MVPDs than Dish offering up live programming on subscribers’ tablets and smartphones. If a paying subscriber wants to be able to watch their programming on the run, where is the harm? Fox is still getting retransmission fees from Dish from that same viewer. Nonetheless, the language in their contract forbids it, so there is a case here. Fox would likely be open to negotiating new agreements for online viewing for current subscribers, but for now it appears they want the sole ability to decide who views their programming online.