Mixed Outcomes on Copyright and Contract Issues Re: Volition, Time- and Space-Shifting, Intermediate Copying and Commercials-Skipping
In a complex opinion addressing intermingled copyright and contract issues, a Federal District Court has wrought an amalgam of rulings in the clash between a major television network and a leading pay television provider whose innovative technology facilitates unauthorized uses of broadcast content. Fox Broadcasting Co. v. DISH Networks LLC (Case No. CV 12-4529), [Redacted] Order (C.D. Cal., Jan. 20, 2015).
The ruling included mostly wins, but some losses, for DISH with implications for other online services that enable time- and space-shifting by end-users. Judge Dolly M. Gee of the Central District of California granted partial summary judgments that upheld DISH’s right under copyright law to offer technologies that allow users to transfer copies of lawfully-stored programming to their own mobile devices and to automatically record full prime time lineups and then skip commercials. On the other hand, Judge Gee held that DISH breached its license agreement with Fox in offering the copy-transferring service, and had no fair use right to copy recordings for the purpose of implementing its technologies.
This Alert will focus on the copyright issues. The case involves several technologies offered by DISH, all designed to make it easier and more convenient to access TV programming for later (or elsewhere) viewing. The District Court decision follows its earlier denial of Fox’s request for a preliminary injunction, Fox Broadcasting v. Dish Network, 905 F.Supp.2d 1088 (C.D. Cal. 2012), and the Ninth Circuit’s decision affirming that denial, Fox Broadcasting v. Dish Network, 747 F.3d 1060 (9th Cir. 2013).
The key copyright holdings and reasoning were as follows:
Conclusions: The partial summary judgment order left a number of issues for trial, particularly regarding damages. After seeing the summary judgment rulings, however, the parties requested the Court to stay the case, representing that a settlement was highly likely, and thereby suggesting that an appeal is not. Because it is not likely to be reviewed, the Court’s decision may be the final word in its assessment of these technologies, and may assume significant precedential authority. As things stand, each side in this latest chapter of the enduring struggles between copyright holders and online technology enterprises may feel the rulings have given some cause for smiles and some for tears.