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Fox sues Dish again over the Hopper, this time over place-shifting, not ad-skipping

Fox sues Dish again over the Hopper, this time over place-shifting, not ad-skipping


Amended lawsuit seeks an injunction over the Hopper With Sling's 'on-the-go' features

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Dish Hopper With Sling
Dish Hopper With Sling

News Corp.'s Fox Broadcasting unit, rebuffed in earlier efforts to block Dish's Hopper DVR for skipping commercials, now seeks an injunction to block the new Hopper with Sling for delivering live and recorded TV to computers, phones, and tablets over the internet.

According to Bloomberg, Fox sought a preliminary injunction yesterday in federal court in Los Angeles, alleging the Hopper's Sling features breach Fox's license agreement with Dish and infringe the network's copyrights on its programming. The Hollywood Reporter notes that this is an amended version of Fox's earlier lawsuit against Dish in the same court, with the same judge.

In its original complaint, Fox attacked Dish's use of Sling:

By making its bootleg, commercial-free, on-demand programming available over the Internet and on mobile devices via Sling, DISH is usurping rights it never negotiated for and does not possess, in order to compete unfairly with authorized providers such as iTunes and Amazon, who pay for the right to offer commercial-free VOD versions of FOX programming to their customers.

In its new filing, Fox's rhetoric is even more heated:

It is not "consumer place-shifting" when Dish retransmit's Fox's signal over the internet, in violation of its license agreement, to get more people to subscribe to Dish Network. It is piracy.

In its original complaint, Fox notes that its content agreement with Dish expressly states that Dish "shall not retransmit or otherwise distribute FOX's signal by means of the internet, broadband or any other online technology or wireless or cellular technology (such as cell phones, tablets, or PDAs)." Here, too, Fox argues that Dish Everywhere's "on the go" features violate its license agreement with Dish, which only permits the copying of programs for "private home use."

"Dish has promoted Primetime Anywhere as a substitute for legitimate on-demand services."

In an earlier ruling, Judge Dolly Gee denied Fox's request for an injunction barring Dish from distributing the Hopper but admitted that Dish may have violated its contract with Fox: "because the alleged harms that Fox will suffer as a result of the QA copies is essentially contractual in nature, the Court finds that the injury is compensable with money damages and does not support a finding of irreparable harm."

Based on the logic of that ruling, it seems likely that here, too, the court won't grant Fox's request for an injunction. Place-shifting with networked DVRs isn't illegal, and the fact that customers are using it isn't causing Fox irreparable harm. The open question here is whether Dish breached its contract with Fox, and if it did, what damages it may owe. It's also another chance for Fox to hammer away at its claim that Primetime Anywhere is an illegal, "bootleg" operation. The extension of the argument into the Hopper's Sling features is just part of that same complaint.

It seems likely that the other broadcast networks will similarly amend their ongoing lawsuits with Dish to reflect the Hopper with Sling's distribution of their content over the internet. More fuel for the fire.

Over email, Dish spokesperson John Hall issued the following statement: "With its latest motion, Fox continues its war against how Americans watch TV. Dish has long argued consumers have the right to privately watch shows anywhere, anytime, and it looks forward to continuing its fight on behalf of customer choice and control." Spokespeople for Fox and CBS did not immediately return requests for comment.

Update: An earlier version of this story misidentified quotes from Fox's 2012 complaint against Dish as part of its amended complaint.