Is Dish v. Fox a hop away from slinging to end?
You can’t always get what you want — that’s a lesson to be re-learned from long-running litigation between Fox Broadcasting and Dish Network. The case, involving technologies including “the Hopper” and Sling, has been contested for almost three years but finally appears to be be nearing an end. While a key recent ruling by U.S. District Judge Dolly Gee has been released, neither Fox nor Dish can claim victory. (Kudos to the Hollywood Reporter Esq. for posting the decision). The parties just may be headed for a settlement over technologies that let consumers choose to “hop” over (skip) content they don’t want to see — such as commercials, key to broadcaster revenues — and to sling (send) programming to devices and at locations of their choice. What Dish won Gee has found that Dish does not engage in the “volitional conduct” necessary to constitute direct infringement. She ruled it is the user who “initiates the process, selects the content and receives the transmission.” It, thus, would be users who may be liable, under direct infringement. Because individual Dish subscribers transmit programming rightfully in their possession to authorized devices, and because the program does not travel to a large number of unknown people, the transmission does not constitute a public performance, and, thus, cannot constitute secondary infringement, the judge ruled, tossing another Fox claim. Where Fox prevailed Dish didn’t triumph on all...
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