Fox Broadcasting Co. v. Dish Network, No. 12-57048 (9th Cir. 2013)
Annotate this CaseFox filed suit against Dish Network for copyright infringement and breach of contract, seeking a preliminary injunction. At issue were two Dish products: (1) "PrimeTime Anytime," which allowed a cable subscriber to set a single timer to record any and all primetime programming on four major networks; and (2) "AutoHop," which allowed users to automatically skip commercials. The court held that the district court did not abuse its discretion in holding that Fox did not establish a likelihood of success on its direct infringement claim. In this case, Dish's PrimeTime Anytime program created the copied program only in response to the user's command and the district court did not err in concluding that the user, not Dish, made the copy. Operating a system used to make copies at the user's command did not mean that the system operator, rather than the user, caused copies to be made. Although Fox established a prima facie case of direct infringement by Dish customers, Dish met its burden of demonstrating that it was likely to succeed on its affirmative defense that its customers' copying was a "fair use." Accordingly, the district court did not abuse its discretion in concluding that Fox was unlikely to succeed on its claim of secondary infringement. Applying a very deferential standard of review, the court concluded that the district court did not abuse its discretion in denying a preliminary injunction based on alleged contract breaches. Finally, even if Fox was likely to succeed on its claims that Dish directly infringed Fox's copyrights and breached the no-copying clause of the contract at issue by making "quality assurance" copies, the court agreed with the district court that Fox did not demonstrate a likelihood of irreparable harm resulting from these copies. Therefore, the court affirmed the judgment of the district court.
Court Description: Copyright / Preliminary Injunction. The panel affirmed the district court’s denial of a broadcaster’s request for a preliminary injunction against a pay television provider’s products that skipped over commercials. The panel held that the district court did not abuse its discretion in holding that the broadcaster failed to demonstrate a likelihood of success on its copyright infringement and breach of contract claims regarding the television provider’s implementation of the commercial- skipping products. As to a direct copyright infringement claim, the record did not establish that the provider, rather than its customers, made copies of television programs for viewing. The broadcaster did not establish a likelihood of success on its claim of secondary infringement because, although it established a prima facie case of direct infringement by customers, the television provider showed that it was likely to succeed on its affirmative defense that the customers’ copying was a “fair use.” Applying a “very deferential” standard of review, the panel concluded that the district court did not abuse its discretion in denying a preliminary injunction based on the alleged contract breaches. The panel also held that the broadcaster failed to demonstrate a likelihood of irreparable harm from the provider’s creation of television-show copies used to perfect the functioning of one of its commercial-skipping products.
The court issued a subsequent related opinion or order on January 24, 2014.
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