After the debacle of the Aereo decision by the Supreme Court, this site noted that the decision would lead to a number of companies trying to use the “looks like a duck” test.
Therefore, it didn’t come as a shock to see that once Aereo was released, Fox ran to the United States Court of Appeals for the 9th Circuit to see if they could use the Aereo ruling to shut down Dish Network’s TV Everywhere service. Dish, the third largest pay TV service, allows their customers to use features in the Hopper DVRs to watch live TV remotely and transfer programs to devices for viewing on the go.
Fox specifically argued streaming of the network’s content is unauthorized, similar to Aereo’s violations. Essentially, Fox wants to stop Dish Network from allowing customers to watch TV on their phones, tablets and computers when they are not at home.
Dish Network believes that their Hopper DVRs differ from Aereo in that the programming is physically in a subscribers’ homes unlike Aereo which allowed customers to save programs on a cloud DVR.
Now, the 9th Circuit has rejected Fox’s request for a preliminary injunction and deemed the issues be litigated in a trial.
Fresh off of its victory over TV startup Aereo, Fox argued that Dish “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 defenses as Aereo which have now been rejected by the Supreme Court.” – Ars Technica
The 9th Circuit found that Fox would not be “irreparably harmed” if Dish Network’s Hopper was continued.
Fox, ABC, CBS and NBC filed a lawsuit against Dish two years ago to stop the Hopper and PrimeTime Anytime features but the Ninth Circuit also rejected the lawsuit last year.