Wednesday, July 24, 2013

Fox Broadcasting v. Dish Network (9th. Cir. - July 24, 2013)

Good news this morning for Dish Network subscribers who want to skip over commercials.  Which is pretty much every single one of them, I imagine.  They still can.

I'll leave the Ninth Circuit's copyright discussion to those more expert in this constantly-evolving field.  Except to say that it seems right to me that the technology here is pretty similar to a DVR, so what Dish does isn't illegal.  Fair enough, and I am more than happy with such a result.

But as for whether it's a breach of Dish's contract with Fox -- well, I gotta say, it seems to me like it pretty much is.

You can read the provisions of the various contracts in the opinion.  Suffice it to say that Fox has -- perhaps not surprisingly -- successfully insisted on a variety of provisions in its contracts with its partners (including Dish) that expressly preclude them from helping consumers skip commercials.  Dish itself distributes the AutoHop technology and creates and gives to its customers copies of Fox's prime time broadcasts with the commercials deleted.  That seems exactly the sort of thing prohibited by the contract.  If it is not, what is the point of these provisions?

Reading between the lines, I think the Ninth Circuit also believes that the contract was breached.  But nonetheless affirms the district court's contrary holding (and resulting refusal to grant a preliminary injunction) as not reflecting "clear error."

Maybe that's right.  Maybe.

Though I'm pretty much persuaded that it's error.  And it seems pretty clear.

Nonetheless, for now, enjoy skipping those commercials.  For now.