DISH Beats FOX again in Appeals Court

[Scott Greczkowski]

Appeals Court Hands Dish Another Victory in Fox Fight

The 9th Circuit Court of Appeals refused to overturn a lower court ruling in favor of Dish’s offering of a feature that allows subscribers to watch broadcast TV outside the home.

A three-judge panel of the appeals court, which heard oral arguments in the case only last week, on Monday concluded that U.S. District Judge Dolly M. Gee “committed no legal error and made no clearly erroneous factual findings” when she refused to grant Fox’s request for an injunction that would have forced Dish to halt its offering of Dish Anywhere and Hopper Transfers. She concluded that Fox had not shown that it would suffer “irreparable harm” — a key element for courts issuing the injunction — if Dish was allowed to continue using the features.

Dish is using Slingbox technology for its Anywhere service, and has made much of the fact that the broadcasters have not challenged its legality up until now. The Slingbox was first introduced in 2005 and deployed in the Dish services in 2012.

Read more at http://variety.com/2014/biz/news/appeals-court-hands-dish-another-victory-in-fox-fight-1201262161/

 

[D. Manley]

Excellent!

 

[dvrexpander]

I really like the Sling features... no surprise here. I still think its a matter of time before one of them wins a battle over auto-hop though but I think that is by design anyway.

 

[dfergie]

On Monday, a panel of three 9th Circuit judges writes there was "no legal error" by judge Gee for, among other things, "characterizing the irreparable harm forecasts of Fox’s executive as speculative." Here's the full opinion.

The fact that Sling place-shifting technology has been on the market for sometime appears to have also hurt Fox's legal arguments. According to the 9th Circuit, "Here, the district court found that Fox’s lack of evidence that the complained-of technology, available for several years, had yet caused Fox’s business any harm weighed against Fox’s argument that it would be irreparably harmed absent a preliminary injunction."

The appellate opinion also shrugs off Fox's pointing to the potential for lost advertising revenue, noting that Judge Gee's opinion "was not clear error, in light of the evidence that advertisers are adapting to the changing landscape of television consumption."

One thing that's not addressed by the 9th Circuit is how the Supreme Court's Aereo ruling impacts the legality of "Dish Anywhere." Late last month, Fox pointed the 9th Circuit to what had happened at the high court -- saying that Dish "engages in virtually identical conduct" as Aereo by transmitting programming over the Internet.

But a notice of supplemental authorities appears to have fallen on deaf ears. Aereo isn't mentioned at all. Then again, even if Fox could use Aereo to demonstrate it has a likelihood of prevailing, what the Supreme Court said hardly matters in an analysis of the broadcaster's harm.

Fox's lawsuit against Dish now proceeds back at a district court.

hollywoodreporter.com

 

[Scherrman]

Read the writing on the wall FOX, it's OVER.

 

[ChadT41]

Ha. Never doubted it for a minute.

 

[nelson61]

This only addresses the appeal for an injunction (turned down by the lower court). So, in the scheme of things, not much has changed and the war will continue.

 

[ChadT41]

Still think dish will win. And then Compromise at contract renewal. Just like with abc.

 

[ronjohn]

Good to see.

As dfergie pointed out, the court did not address the impact of the Aereo case. The court said: "As this is a preliminary injunction appeal, we review the district court’s decision for abuse of discretion". The court decided that the lower court had not committed any legal errors, or found any erroneous factual findings with regards to the injunction. If Dish is found to be violating the law at the end of the actual procedings, the harm will not be irreparable, and the value of the harm can be calculated.

 

[rsmithwi]

Congrats to DISH!. FOX can go f**k off and leave the viewers of their mediocre shows alone.

 

[harshness]

This only addresses the appeal for an injunction (turned down by the lower court). So, in the scheme of things, not much has changed and the war will continue.

I disagree. That irreparable harm will not result absent an injunction suggests that any harm suffered isn't all that significant. Of course if Fox doesn't do something soon, the courts will consider the cow out of the barn WRT Dish Anywhere and they won't be able to monetize whatever the hell it is that they're on about going forward.

Fox still has to prove that their copyrights have been violated and I believe they've already had some difficulty proving that aspect as weighed against fair use.

 

[T134]

Actually this means nothing and is not a "victory" for dish. In order to get a temporary injunction you basically have to prove on the fly that irreparable damage is being done and it must be obvious from the quick arguments and court filings that you are likely to succeed based on the merits of your case. More or less you have to prove your entire case right then and there. By design this type of exparte injunction request is rarely granted. If they were easy to obtain many more people and companies would just file b.s. requests and shut down legitimate businesses without just cause.

Even if the judge was a tech guru and expert on all areas of law that come into play for this case I can't see something this technical getting a temporary injunction. It's just not an open and shut, black and white case where the legal outcome is obvious.

I must say given the odds that I am surprised Fox even tried this. Even if they had a convincing showing at the hearing it doesn't look good that they are just now asking the court for emergency relief.....2+ years after sling became part of Dish service.

 

[Slamminc11]

what is this now for Fox, 15-20 losses in court on this thing...

 

[dangue]

Actually this means nothing and is not a "victory" for dish. In order to get a temporary injunction you basically have to prove on the fly that irreparable damage is being done and it must be obvious from the quick arguments and court filings that you are likely to succeed based on the merits of your case. More or less you have to prove your entire case right then and there. By design this type of exparte injunction request is rarely granted. If they were easy to obtain many more people and companies would just file b.s. requests and shut down legitimate businesses without just cause.

Even if the judge was a tech guru and expert on all areas of law that come into play for this case I can't see something this technical getting a temporary injunction. It's just not an open and shut, black and white case where the legal outcome is obvious.

I must say given the odds that I am surprised Fox even tried this. Even if they had a convincing showing at the hearing it doesn't look good that they are just now asking the court for emergency relief.....2+ years after sling became part of Dish service.

That's not quite right. It's a sliding scale between irreparable harm and likelihood of winning (the more of one you have, the less of the other you need). Enough irreparable harm and you get an injunction. Alternatively, enough of a likelihood of winning on the merits will also get you injunctive relief. Or enough of both those factors combined will also get a grant of injunctive relief.

But I do agree that this does not reflect on the merits of the case much. Just means that it's not a clear case fox will win to overcome the fact that damages are enough to offset any harm.

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[Scott Greczkowski]

I must say given the odds that I am surprised Fox even tried this. Even if they had a convincing showing at the hearing it doesn't look good that they are just now asking the court for emergency relief.....2+ years after sling became part of Dish service.

It has been long then that The 922 came out in 2010.

 

[MikeD-C05]

SUCK IT FOX!!!!!!!!!

 

[shkarter1985]

I bet Rupert Murdoch's face is turning red like TinkerBell when she gets mad! Same story for the corrupted NAB too! LOL

Much better ruling just like they're trying to avenge Aereo's death. That's different.

 

[DishSubLA]

The original 9th circuit ruling upholding the district court's decision NOT to grant a preliminary injunction pretty much makes it clear that Fox and the broadcasters have very little chance (well, just about no chance) of prevailing. The ONE point upon which the 9th felt that the broadcasters could win, was immediately kaboshed in the next sentence because the broadcasters "would not suffer loss or damages." The broadcasters know (I personally believe their lawyers told them from day one) they have NO real case and have no chance of prevailing. The broadcasters (except for Disney so far, who have dropped their case as part of the new agreement with Dish) are keeping it alive for leverage at retransmission talks with Dish.

 

[harshness]

The ONE point upon which the 9th felt that the broadcasters could win, was immediately kaboshed in the next sentence because the broadcasters "would not suffer loss or damages."

You've paraphrased an important element out of the real decision: the damage wouldn't be significant over the lifespan of the proceedings. This is different from the span of all time going forward.

 

[talk000]

http://blogs.findlaw.com/courtside/...-ruling-9th-cir.html?DCMP=NWL-cons_weeklydocs