Judge Gee states that Fox might prevail if Dish's recorded copy of the broadcast for internal use for Hopper quality control is deemed a violation of the "no unauthorized" copy stipulation. However, the 9th Circuit Court of Appeals (which covers Los Angeles where the Dish vs. Fox case is being heard) in its ruling supporting Gee's refusal to grant a preliminary injunction to have Dish turn-off the Hopper feature until the matter is settled, made it clear that while the ONLY chance of prevailing is, indeed, violation of the "no unauthorized copy" stipulation, the 9th Circuit went on to say that the networks would have to prove loss or damages from the unauthorized copy, and that since the "unauthorized" copy was seen only internally at Dish by a few employees for quality control purposes, such use clearly does not rise to loss or damages, so the 9th said that the networks would probably lose on that claim as well, and the 9th cited that point as the nets ONLY possible chance of prevailing.
The 9th's decision makes it pretty clear how they see things, and it is NOT the way Fox sees it. If judge Gee rules that the unauthorized copy is a violation, then the inevitable appeal to the 9th will have a predictable outcome: overruling Gee in favor of Dish.
Further, in its decision, the 9th seemed to consider the PTAT and Auto-hop features to be DVR services and never used a video-on-demand model. So, if Gee rules that PTAT and Autohop are a commercial free Video on Demand service, the inevitable appeal on that dicision is also predictable: for the 9th to rule as it did in considering the preliminary injunction, it was viewed by the court as a DVR feature, otherwise, the 9th would have ruled quite differently.
So, Fox is really desperate in trying to get the court to see a DVR feature as a commercial free video on demand service. I don't think any individual is that brain dead because all DVR's could be construed as a video on demand service. Even TiVo from day one has promted its DVR's as functioning as just that and even going so far as to have the menu option of "Now Playing List" on its DVR's and later "My Shows" with lists of recordings ready for immediate playback JUST LIKE a VOD service, but legally, it is NOT for a variety of reason mostly under the Fair Use ruling of the Supreme Court back to Sony vs. Universal that made recordings at home legal. From the consumers view, both DVR and VOD can be an identical experience: select the show from the list and have it playback immediately for viewing. There is a ton of precedence that what matters is HOW those recordings became available for viewing, specifically: the USER initiated the RECORDING of content to be saved somewhere (includes servers at the cable company, for example) for personal use. That is a DVR, NOT a VOD service. If the judge does her research for the trial, she will find a mountain of precedent and have no choice but to rule PTAT and Auto-hop are, indeed, DVR features and that they meet the test for personal and private, as does the Dish Anywhere service which is really Sling, and Sling is legal because it is streaming the recorded content initiated by the user FROM their home (not like Aereo) to their personal device encrypted to keep it private and for personal use in a remote location.
The 9th will have the final say on this, unless Fox and Dish come to an agreement, one that we hope would be similar to Disney's recent agreement with Dish. The Supreme Court just won't have any interest in this case.
