Fox Broadcasting Co. v. Dish Network L.L.C.
747 F.3d 1060
9th Cir.2013Background
- Fox owns copyrights to Fox programs and licenses them to distributors like Dish for retransmission.
- Dish released the Hopper with PrimeTime Anytime and AutoHop, enabling recording and automatic commercial-skipping.
- A 2002 contract prohibits recording/copying of Fox signals and restricts distribution; a 2010 letter required disabling FF during ads for VOD.
- Fox sued for copyright infringement and breach of contract seeking a preliminary injunction; district court denied.
- The district court concluded Fox failed to show likelihood of success on copyright and contract claims, and no irreparable harm.
- We review for abuse of discretion and affirm the denial of preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement by copying | Fox argues Dish caused copies via PrimeTime Anytime. | Dish contends users make the copies; Dish does not directly copy. | Fox unlikely to succeed; user is the primary cause of copies. |
| Secondary infringement and fair use | Fox claims Dish is liable for users' copying of Fox programs. | Dish asserts fair use under Sony for time-shifting by users. | Dish likely succeeds; fair use defense applies to user copying. |
| Contract breach—recording/copying clause | Dish breached 2002 clause by enabling PrimeTime Anytime copies. | Dish argues no direct infringement and interpretation aligns with copyright doctrine. | District court not erroneous; no likelihood of contract breach. |
| Contract breach—distribution restriction in 2002 contract | PrimeTime Anytime constitutes impermissible distribution. | PrimeTime Anytime not identical to VOD but potentially similar; interpretation uncertain. | Court cautious; unclear if term 'distribute' is breached; no clear error. |
| Breach of 2010 letter agreement regarding fast-forwarding | PrimeTime Anytime violates fast-forwarding restrictions for VOD-like use. | PTA is DVR-like, not clearly precluded by the 2010 letter. | Not a clear breach; district court did not abuse its discretion. |
Key Cases Cited
- Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (Supreme Court 1984) (time-shifting fair use; not liable for secondary infringement)
- Cablevision L.L.C. v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (who makes the copy; remote-storage DVR; direct vs. contributory liability)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (abuse of discretion standard; deference in injunction appeals)
- L.A. Memorial Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197 (9th Cir. 1980) (monetary injury generally not irreparable)
- Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (Supreme Court 1985) (market harm under fair use; substantial questions about impact)
- A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (secondary liability requires direct infringement; fair use defenses)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (Supreme Court 2008) (irreparable harm requirement for injunctions)
- M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) (irreparable harm and injunction standards; causation considerations)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (balanced hardships and public interest in injunctions)