Referring to a Supreme Court ruling on Aereo, a now defunct service which streamed broadcast television programming to subscribers, Judge Dolly M. Gee of the U.S. District Court for the Central District of California ruled that Aereo neither owned the copyright to the broadcast works nor held a license from the copyright owners to perform those works publicly.
“DISH does not, however, receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did,” Gee wrote in a decision on Jan 12 that was made public in a redacted form on Tuesday.
“DISH has a license for the analogous initial retransmission of the programming to users via satellite,” the judge added.
Once Dish subscribers receive the authorized programming, its Dish Anywhere service aids the transfer of those recordings in the set-top box or digital video recorder to the subscriber’s other devices, according to the judge, who added that the ultimate function of Dish Anywhere is to transmit programming that is already legitimately on a user’s in-home hardware to his Internet-connected mobile device.
“Relying on external servers and equipment to ensure that content travels between those devices properly does not transform that service into a traditional cable company,” she added.
On the charge that the programming was being illegally used for a public performance, the judge observed that when an individual Dish subscriber transmits programming rightfully in her possession to another device, that transmission does not travel to “a large number of people who are unknown to each other.” The transmission travels either to the subscriber or to someone in the household using an authenticated device.
The judge also observed that a “no copying provision” in the agreement between Dish and Fox did not cover private home use by consumers. “Thus, DISH subscribers may time- and place-shift Fox programming within the confines of their home,” she wrote.
The case was scheduled to go to trial in February but was put on hold until October after both companies requested it. They said in a Jan. 15 filing that the issues at stake in the lawsuit were “highly likely” to be resolved as they negotiate a renewal of their 2010 agreement later this year.
The judge agreed with Fox that Dish subscribers were contractually bound not to use Dish Anywhere outside the home on mobile devices. “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. Those are the terms, however, to which the parties agreed,” she wrote.
Judge Gee also found that by copying Fox programming for quality assurance testing of its ad-skipping AutoHop feature, Dish violated the no copying provision.
Fox could not be immediately reached for comment.
“The decision is the sixth in a string of victories in federal courts on both coasts for the American consumer related to our Hopper Whole-Home DVR platform,” said R. Stanton Dodge, Dish’s general counsel in a statement. “We are proud to have stood by their side in this important fight over fundamental rights of consumer choice and control.”
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