High Stakes for Television Networks in Failure To Unseat Dish Customers Recording Device

Relying on the 1984 Supreme Court precedent involving use of a VCR to “time-shift” home viewing of television shows, Sony v. Universal City Studios, 464 U.S. 417 (1984), and the 2008 U.S. Court of Appeals for the Second Circuit decision concerning Cablevision's remote DVR technology, Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008), the Ninth Circuit appears to have concluded that “the more things change, the more they remain the same.” Thus, the Ninth Circuit determined that the recording of Fox programs, although enabled by the Hopper in conjunction with a complex technological infrastructure developed and run by Dish, was nevertheless directed by the customer for private, noncommercial use and constituted a fair use.

Although only Dish and an affiliated company were defendants, they prevailed as a result of the court's conclusions that only the customers engaged in direct copying and the customers' copying was a noninfringing fair use. Therefore, Dish was neither liable for direct copying nor was it secondarily liable because its customers' fair use eliminated the element of direct infringement required to establish secondary liability. (Fox also based its preliminary injunction motion on contract claims which fared no better, although the court characterized them “much closer” than the copyright claims.)