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Cable Technology Feature Article

July 16, 2014

FOX Failure to Equate DISH Anywhere with Aereo a Boon for Cloud Precedent

By Tara Seals, TMCnet Contributor

After seeing satisfaction in Aereo’s failure to win favor in the US Supreme Court, FOX has been handed a defeat in its bid to tear down DISH Network's Slingbox-based DISH Anywhere offering on the same grounds.

Aereo provided local affiliate feeds via the Internet for $8 per month, but failed to pay retransmission feeds. DISH uses the Slingbox technology and a side-loading feature called Hopper Transfers to give its satellite subscribers access to content already stored on their DVRs, from essentially anywhere. FOX lawyer Richard Stone argued to the 9th Circuit Court of Appeals that both companies give consumers digital access to content without permission—and should be considered the same as far as Copyright Act violations go.

"DISH, which engages in virtually identical conduct when it streams FOX's programming to DISH subscribers over the Internet – albeit also in violation of an express contractual prohibition – has repeatedly raised the same defense as Aereo which have now been rejected by the Supreme Court," said Stone, in a letter to the court.

The broadcaster wanted to reverse a lower court ruling in which a federal judge refused to grant a preliminary injunction against the DISH Anywhere service. In the oral arguments before the court, Stone said that his company's broadcast network and affiliated stations are losing revenue and audience share for the same reasons that it was suffering from Aereo's copyright infringement. Unlike the online streamer however, DISH licenses content and pays significant fees to FOX for the right to offer its subscribers DVR access to copyrighted shows.

But alas, it was not to be. From the outset, the court seemed skeptical. "The Supreme Court has all sorts of caveats about how this is about Aereo and nothing else," said Judge Marsha Berzon after the oral arguments. "I don't think you can stand there and say it's the same thing."

Ultimately, she affirmed a lower court's September 2013 rejection of FOX’s efforts to bar DISH subscribers from using DISH’s place-shifting features, which are essentially perks of the network DVR architecture and the Slingbox technology that has been in the market since 2005. For those concerned that the Aereo decision would have a chilling effect on cloud technologies, it’s a significant victory.

For its part, DISH of course felt validated. "[The] decision is the fifth in a string of victories for consumers related to our Hopper Whole-Home DVR platform,” said DISH executive vice president and general counsel R. Stanton Dodge. “DISH is pleased that the court has sided again with consumer choice and control by rejecting Fox's efforts to deny our customers access to the DISH Anywhere and Hopper Transfers features. Last year, the Ninth Circuit also rejected FOX's attempt to block customers from using the AutoHop and PrimeTime Anytime features. We will continue to vigorously defend consumers' right to choice and control over their viewing experience."

Edited by Adam Brandt

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