Media and Entertainment Law Newsletter, April 2015

04/02/2015

Aereo’s Reach Limited in Fox v. Dish Network
by Matthew Chiarizio and Jason Bloom

Since the United States Supreme Court’s June 2014 ruling that Aereo’s system for transmitting over-the-air television broadcasts through the Internet violated copyright law, district court judges have begun defining the contours of the Supreme Court’s opinion. Most recently, in a long-running dispute between broadcaster Fox and satellite television provider Dish Network, the Central District of California became one of the first lower courts to interpret and apply the Aereo opinion. Conforming to Justice Breyer’s directions, U.S. District Judge Dolly M. Gee largely limited Aereo to the specific technology and system at issue in that case. While this recent ruling may help allay some fears for those concerned about Aereo’s potential impact on cloud computing and other DVR technology, the difficult problem of fitting new and rapidly evolving technologies into the framework of the 1976 Copyright Act continues to plague litigants, practitioners, and the judiciary. Thus, a closer evaluation of Fox v. Dish Network1 may prove instructive.

In Fox v. Dish Network, Fox leveled copyright infringement claims against Dish Network for several of Dish’s recent products and features, but most strongly argued that Aereo barred “DISH Anywhere,” a service that streams either live or recorded programming over the Internet from a customer’s home DVR to a computer or mobile device. Fox argued that DISH Anywhere was indistinguishable from Aereo’s now-defunct service because it involved a one-to-one transfer, streamed over the Internet, without proper authorization of the copyright holder.

The district court disagreed, holding that DISH Anywhere, unlike the system in Aereo, does not perform shows or other content publicly, and therefore does not infringe Fox’s copyrights. The court distinguished DISH Anywhere from Aereo’s system on the basis that DISH Anywhere requires equipment inside the user’s home, unlike Aereo’s centralized operation. Further, and more importantly, DISH Anywhere users initially receive a licensed copy of the programming, unlike Aereo’s transmission of content captured from public signals.

The court also mentioned the volitional conduct requirement necessary to invoke direct liability for copyright infringement. The court noted that Aereo’s failure to specifically address the volitional conduct requirement should not be read as an abandonment of the long-standing rule adopted by every Court of Appeals to have considered the issue. The district court considered the many steps required by the end user to activate and use DISH Anywhere, then observed that no active human interaction at Dish Network was required to process any individual request. Because of this, the end user, not Dish Network, was the volitional actor for any potential direct infringement with regard to DISH Anywhere.

These distinctions convinced the court that the DISH Anywhere system at issue is not similar to a traditional cable company and does not publicly perform Fox’s copyrighted content. Accordingly, the district court followed the Supreme Court’s dicta in Aereo and declined to apply that opinion to “other novel issues . . . to which Congress has not plainly marked the course.” Until Congress decides to mark an appropriate course, courts must continue their sometimes-tortuous application of the 39-year-old U.S. Copyright Act to ever-evolving technologies, unfortunately leaving uncertainty for businesses seeking to develop and commercialize new technologies.  

For more information contact Laura Lee Prather at laura.prather@haynesboone.com or 512.867.8476 and Tom Williams at thomas.williams@haynesboone.com or 817.347.6625.

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1
 No. 2:12-cv-04529-DMG-SH (C.D. Cal. Jan. 20, 2015).

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