On Wednesday, U.S. District Court Judge Dolly Gee in Los Angeles refused to grant Fox Broadcasting's first attempt to block Dish Network's advertising-skipping DVR services known as "AutoHop" and "PrimeTime Anytime."
The court order is under seal, and attorneys for both sides have declined comment, citing confidentiality.
However, The Hollywood Reporter has learned that a preliminary injunction has been refused. Further, the ruling might not be a complete victory for Dish because the judge is inclined to accept certain copyright infringement theories.
In May, each of the major networks sued Dish, contending that the technology introduced to consumers this past March amounted to "a bootleg, commercial-free video-on-demand service" that would irreparably harm the television industry by threatening the billions of dollars spent each year on commercials. Several lawsuits are now proceeding concurrently.
Two months ago, a hearing on the preliminary injunction was held.
Fox told the judge that Dish's new DVR system represents massive copyright infringement as well as a breach of the contract it has with the satellite distributor.
The broadcaster believes that Dish has ultimate control in the way its consumers have been copying programs in a commercial-free format on the system. Dish, on the other hand, has presented arguments that it is merely "enabling a consumer's option" to record commercial-free programming.
Both sides don't agree on much. Neither can see eye-to-eye on how the technology should be defined.
The satellite company is asserting that AutoHop (aka the Hopper) is really just an improvement on existing recording devices that have been accepted by the industry and judicially blessed as "fair use" going back to the Supreme Court's 1984 ruling on the Sony Betamax VCR and continuing through the Ninth Circuit's 2008 ruling on Cablevision's remote-storage DVR.
Fox dismisses Dish's contention that the technology at stake is merely a "souped-up DVR" and disputes that the freedom to time-shift is at stake here.
More to come.
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