Fox Expands Hopper Fight22 Feb, 2013 By: Erik Gruenwedel
TV network asks judge to disallow Dish subscribers from accessing recorded content on portable devices
Fox Broadcasting Co. has expanded its fight against Dish Network’s controversial Hopper digital video recorder to prohibit access to recorded programming on portable devices.
In the motion filed Feb. 21 in Los Angeles District Court, Fox is asking Judge Dolly Gee to grant a preliminary injunction against the Hopper’s new app (dubbed “Hopper Transfers”) that enables subscribers to access recorded programming on tablets and smartphones with or without an Internet connection.
The transfer of content to portable devices is done through technology created by Sling Media, which EchoStar acquired in 2007. Dish chairman Charlie Ergen owns EchoStar.
"Fox granted Dish a limited right to retransmit Fox's signal over its satellite system, and Dish grants its subscribers the limited right to watch the programs retransmitted by Dish in their private homes. That is all," Fox said in the filing.
A representative from Dish was not immediately available, but Ergen, speaking in a Feb. 20 call with analysts, said as media companies grant license agreements to Amazon, YouTube, Hulu or Netflix, it diminishes the value of the initial broadcast. The executive contends that allowing subscribers to access content on demand on portable devices can both embrace technology and consumer trends while creating new revenue streams.
“You can fight change or you can embrace change,” Ergen said. “And as painful as it is sometimes, [Dish] is a company that will embrace change because we believe that's the best long-term strategy.”
Gee is slated to hear Fox’s motion March 22.
Fox and other media companies, including NBC, CBS and ABC, last year filed separate lawsuits against Hopper’s AutoHop technology, claiming it violates copyrights and carriage agreements, among other issues.
AutoHop allows users to automatically skip TV ads on recorded — not live — primetime programming.
Last November, Gee ruled in favor of Dish by denying Fox’s preliminary injunction request against AutoHop.
In a Jan. 31 brief filed with the Ninth Circuit Court of Appeals, Fox said Dish is attracting subscribers by offering them on-demand access to primetime programs, which they did not have to record themselves and which can be viewed commercial-free. It contends Dish could not do this without breaching its license agreement with Fox and infringing Fox’s copyrights.
“Dish’s colorful allusions, over-the-top mockery and baseless accusations that Fox is attempting to re-litigate the 30-year-old Sony case have one purpose: to draw the court’s attention away from the fact that Dish is directly infringing [upon] Fox’s copyrights and breaching its license agreement with Fox,” the broadcaster said.
Fox said Gee’s decision last year “effectively” nullified the contractual protections against unauthorized copying, commercial-free VOD and anything similar to VOD that Fox bargained for in order to protect the ongoing profitability of its business model.
“Dish’s pro-consumer bluster is phony,” Fox said. “Dish is offering commercial-free TV because it helps Dish sell [satellite TV] subscriptions. But behind the scenes, Dish is planning to eventually substitute Fox’s obliterated ads with its own advertisements. The only way to serve the public interest is to protect ad-supported television, which fuels the local and national economies, employs thousands and provides millions of Americans with access to quality programming for a fraction of the cost.”