Dish Anywhere Ducks Fox’s Injunction Demand

(CN) - Fox Broadcasting Co. failed to show that it would lose advertising revenue without an injunction against the Dish Anywhere streaming service, the 9th Circuit ruled.

Fox's loss is just the latest example of how courts are playing a part in the future of television, coming on the heels of the Supreme Court's finding that Aereo, a service that allows subscribers to watch broadcast television online, infringes on the copyrights owned by the major networks.

Like Aereo, Dish Network's Dish Anywhere and Hopper Transfers features allow consumers to watch live and recorded network television online. Fox and other networks have filed several lawsuits alleging that the services infringe their copyrights and breach their contracts.

U.S. District Judge Dolly Gee in Los Angeles denied Fox a preliminary injunction against the technology in 2012, and a unanimous appellate panel affirmed in an unpublished opinion Monday.

The three-judge panel agreed that Fox had failed to show that it would be irreparably harmed without an injunction, and found that the lower court had made no "clearly erroneous factual findings."

Among other arguments against the technology, Fox claimed that it would lose advertising revenue absent an injunction. The appellate panel found this contention "inadequately supported ... in light of the evidence that advertisers are adapting to the changing landscape of television consumption."

Fox also said that the District Court had held it to a too-high standard in showing irreparable harm.

"Other courts that have addressed similar, unauthorized Internet streaming and distribution of television programming or movies have reached the opposite conclusion, finding a clear threat of irreparable harm to copyright owners - in some cases based on the exact same evidence that Fox proffered here," Fox argued in an appellate brief. "The District Court's legal errors move the goalposts dramatically for copyright owners who serve the purposes underlying the Copyright Act by disseminating their creative works."

Fox lost a similar attempt last year to block Dish Network's AutoHop and PrimeTime Anytime recording and ad-skipping features.

In that case, Judge Gee also denied Fox's request for a preliminary injunction, finding its arguments for direct and secondary copyright infringement unconvincing since the user, not Dish itself, instigated the recording and commercial-skipping.

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