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 counts, however. The judge looked at a 2002 RTC agreement that prohibited Dish from authorizing reproduction of any Fox programs. The court examined the “plain language” of the agreement that prohibits all copying of Fox programming for any use other than private use in the home. “Given our knowledge of current technologies, it may seem absurd that a contract would allow subscribers to use Dish Anywhere on their mobile devices inside the home, but not the moment they step outside the home,” she noted. But the court ultimately ruled that the plain meaning of the language should apply and Dish is in breach of contract.
The court also left open the damages Fox will receive as an issue of fact for the trial as to whether a reasonable royalty rate would have been charged for out of home personal use where a contract restricts it.
Up next: settlement?
The case is set to resume in October but both sides hope an upcoming settlement can finally end the case.