The ad-skipping technology featured in the Dish Hopper DVR has won accolades and also inspired a legal fusillade from broadcasters. Fox asked a Los Angeles federal judge to shut down the product right away, but was denied; now the issue is up on appeal.
At the CES convention this year, Dish unveiled its next-generation Dish Hopper with Sling. The device allows users to move content they've recorded on their DVRs to mobile devices like iPads and then watch anywhere, online or off, with a feature called Hopper Transfers.
This week, Fox lawyers filed a new motion [PDF] laying out their opinion about the new 2013 features. No surprise, they view the new DVR much like last year's DVR. Their brief argues it's a violation of both Dish's contract to carry Fox programming as well as a violation of copyright law. Even though Fox was unable to get last year's model knocked off the market, they have filed papers asking for the same punishment for the 2013 model: a preliminary injunction.
"Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox's live broadcast signal over the Internet or to make copies of Fox programs to watch 'on the go,' because Dish does not have the right to offer these services to its subscribers in the first place," write Fox lawyers. It's also a violation of copyright law, they say, because moving broadcast TV to the Internet violates the "public performance right" in copyright law.
The new motion argues that Hopper Transfers will compete with higher-priced services like iTunes, to Fox's disadvantage. Fox lawyers write that the new features "will harm Fox's relationships with authorized digital download services."
"It is not 'consumer place-shifting' when Dish retransmits Fox's signal over the Internet, in violation of its license agreement, to get more people to subscribe to Dish Network," states Fox. "It is piracy."
The legal clash over the Dish Hopper has also led to controversy in the world of journalism. CNET's editorial staff voted to give Dish the top award at CES; but that decision was nixed by top brass at CBS. That network has its own lawsuit over the Hopper and wouldn't stand for its journalists giving an award to a product it believed is illegal. CBS was widely criticized for that move, and as a result of the brouhaha CNET will be barred from producing the "Best of CES" awards in the future.
Interestingly, CES features heavily in Fox's brief, as well. The broadcaster filed a DVD of video clips with the court arguing for its preliminary injunction. It includes clips of Dish VP Vivek Khemka discussing the original Hopper in 2012; a video of Dish CEO Joe Clayton talking to a CES audience about Hopper Transfers; as well as news reports about the new product from CNET and Fox Business Network.
The fact that Fox didn't get the injunction it wanted on last year's model means that getting one against the 2013 Hopper will obviously not be easy, but it's certainly possible. The ability to move content between different devices is the type of wholly new feature that caused the tech press to praise the new Hopper, but it's also the kind of thing that is going to make this judge reconsider the issues from scratch.
Fox and other content companies have decided that control over content on tablets in particular is something worth fighting for. When cable companies started introducing their own iPad apps, for example, that drew lawsuits as well. It's not clear why the original Slingbox never drew copyright lawsuits the way other tech devices have.
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