NY Judge Bails Out of TV Ad-Skipping Fight

     MANHATTAN (CN) – The Dish Network cannot pre-empt Los Angeles lawsuits from three major television networks by litigating the matter in New York, a federal judge ruled.
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     On May 24, CBS, Fox and NBC each filed federal complaints against Dish for copyright infringement in Los Angeles.
     Dish hoped to beat the claims by filing a preventative federal complaint in Manhattan earlier that day.
     The networks say Dish’s Primetime Anytime service allows the “unauthorized copy” of almost 100 hours of network programming every eight days. The service is available to Dish customers who rent a Hopper set top box.
     “To make matters worse,” Dish customers can use a remote-free function called Auto Hop to skip commercials automatically, according to the complaint filed by Fox Broadcasting Co. and its affiliates.
     But a Dish official called the lawsuits “absurd and profoundly anti-consumer.”
     “Customers have been skipping commercials since the birth of the remote control, and the networks are arguing against that fact,” Dish Senior Vice President of Programming Dave Shull said in a statement. “Taken to the extreme, will the networks next ask consumers to stop changing channels?”
     Typically, courts apply a filed-first rule, prioritizing the case filed earliest among competing lawsuits.
     But U.S. District Judge Laura Taylor Swain of Manhattan ruled that Dish’s lawsuit was the type of case illustrating the exception to that rule.
     “Here, several facts persuade the court that Dish’s filing was motivated by a fear of imminent legal action by the networks and was, thus, improperly anticipatory within the meaning of the special circumstances exception to the first-filed rule,” the order states.
     She said that one of those factors involved the press reports indicating that Dish knew the networks planned to sue.
     “First, the Hollywood Reporter article conveyed the unmistakable impression that a legal showdown was inevitable; while it did not quote named sources, it identified each of the networks preparing for legal action, provided a time frame for filing suit (‘within a month’), and identified the types of claims that were expected to be brought,” the order states. “Dish’s complaint leaves no doubt as to how Dish understood the import of this article: Dish’s opening paragraph states that ‘the Major Television Networks have threatened [Dish Network] with litigation,’ and a later subheading reads, ‘The Major Television Networks Threaten DISH with Imminent Litigation.'”
     The decision also notes that “Dish filed its complaint less than 24 hours after the article was published, bolstering the inference that Dish took the article’s claims of impending coercive litigation seriously.”
     “Third, the length and content of Dish’s complaint are indicative of hasty preparation: it is a mere 13 pages long, fails to name the parties who hold the copyrights, lists neither the relevant copyrights nor the contractual provisions at issue, and contains only the most cursory description of the allegedly offending services,” Swain added.
     The Los Angeles courts can streamline proceedings by consolidating or coordinating the actions, according to the ruling.
     Portions of the case will still proceed in New York, however, since CBS and NBC did not assert contract claims in California, and because ABC did not filed suit against Dish.
     ABC filed an answer and counterclaims to Dish’s New York action for declaratory judgment, but has said it would litigate in the Central District of California with the other networks.

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