updated 03:11 pm EDT, Mon June 30, 2014
Lawyers use ruling to show 'unauthorized transmissions' through Hopper DVR
After the United States Supreme Court ruled against Aereo, effectively ending the company, Fox Broadcasting has been quick to use the ruling in another case, as uncovered by The Guardian. The media company has been waging a war against Dish Network and its Hopper DVR with Dish Anywhere streaming. The case is set for a hearing in the United States Ninth Circuit Court of Appeals on July 7 in California.
The Dish Anywhere technology allows Dish customers to stream television over the Internet to other devices such as tablets and smartphones. In addition to the streaming, Dish Anywhere allows users to copy the program through cloud technology, and dump it on another device for viewing away from home.
Fox has long had an issue with the technology, as well as others, revolving around the Hopper DVR from Dish. Quickly turning around the Aereo ruling to apply to Dish, Fox's attorneys filed a letter with the court. In the letter, obtained by Ars Technica, Fox uses arguments the Supreme Court commented on in hopes of applying the same ideas to the Dish case. Of those, it states that defense of being only an equipment provider, responsibility of transmission falling to subscribers and arguments on public performances are not valid.
"Dish, which engages in virtually identical conduct when it streams Fox's programming to Dish subscribers over the Internet - albeit also in violation of an express contractual prohibition - has repeatedly raised the same defense as Aereo which have now been rejected by the Supreme Court," says the letter from Fox's legal counsel Richard Stone.
The major difference between Aereo and Dish is in how they define their services. The satellite company is actually a provider, while Aereo stated that it was only offering a device to users. Aereo didn't have agreements in place with content providers either. The nature of Dish's business means that rights for rebroadcast have been procured, including those of television shows from Fox. The technology for the Hopper is based on the Slingbox, making it not far off from other streaming devices.
Dish countered the Fox letter with one of their own to the appeals court. Counselor E. Joshua Rosenkranz illustrated the difference between the reality of the Dish Hopper technology and the devices that Aereo utilizes to deliver programming. A copy of the letter was also acquired by Ars Technica.
The emphasis was placed on how the device lives in a home, making it similar to a DVR or VCR that isn't centrally controlled by the company. It is further argued that the subscribers have a right to the content since it isn't transmitted to the public. Customers also pay for the service to be delivered to their homes first, before it hits other devices.
"The first distinction lies in the Court's constant refrain that Aereo looks just like the cable companies Congress intended to cover with the Transmit Clause, which took signals off the air and retransmitted them to the public without authority or payment," said Rosenkranz. "Dish pays retransmission fees to Fox -- Sling does not implicate pirating signals. Customers pay for the right to receive works, with Fox's authorization, and do receive them at home before sending them to themselves."
However, the Fox case of the rebroadcast using Dish Anywhere isn't only legal problem the company is currently facing. As the Wall Street Journal points out, Dish and NBC were recently able to put on hold their two-year lawsuit aside over ad-skipping technology in the Hopper DVRs. The two companies entered into a discussion, at least putting the suit aside for the time being.
The Walt Disney Company settled a lawsuit against the satellite company in March as part of a deal for carrying the Disney television networks. Fox and CBS still have lawsuits outstanding pertaining to the Hopper skipping technology. Previously, Fox's attempt to shut down AutoHop was denied. The case is headed to a challenge in January.