The fallout from last week’s Supreme Court ruling against streaming video startup Aereo continues, with broadcasters arguing that the SCOTUS decision bolsters their legal efforts to shut down Dish Network’s Dish Anywhere service.
A federal appeals court in San Francisco is set to hear arguments in a dispute between the broadcasters, led by FOX, against Dish over Dish Anywhere, which uses Slingbox technology to allow subscribers to have online access to live and recorded content from their DVRs.
In the Aereo case, the broadcasters successfully convinced six justices that the streaming service — which used tiny antennae to capture freely available over-the-air signals and send them over the Internet to paying customers — was more like a cable company than an antenna landlord. This means that Aereo would need to pay the often-hefty retransmission fees that cable companies pay to the networks so you can watch The Bachelor or whatever hourlong drama NBC will cancel after 4 weeks.
Just in case the appeals court hadn’t heard about the Aereo decision, the FOX lawyers immediately sent over a copy, along with a note [PDF] explaining why the SCOTUS ruling proves the broadcasters’ point.
The network argues that Dish “engages in virtually identical conduct” to Aereo by allowing customers to stream the broadcasts over the Internet. FOX claims that Dish is thus engaging in an illegal public performance and can’t hide behind the defense that it is only providing the equipment for streaming or that it is the subscribers who are doing the transmitting to themselves from their own copies.
In its response [PDF] to the FOX filing, Dish argues that there is actually language in the Aereo ruling that bolsters its legal position.
First, Dish points to the fact that SCOTUS’s problem with Aereo is that it was acting like a cable company without paying retransmission fees. Since Dish does pay retransmission fees and isn’t pirating network feeds, the Aereo comparison doesn’t hold water, claims the satellite company.
“Customers pay for the right to receive works, with Fox’s authorization, and do receive them at home before sending them to themselves,” writes Dish.
Another part of the SCOTUS ruling cited by Dish is that Aereo “uses its own equipment, housed in a centralized warehouse, outside of its users’ homes.” To Dish, this is very different than the Sling technology it uses.
“Sling is not centrally controlled and the device lives in the customer’s home,” writes Dish. “Sling is just like a DVR or VCR — it is built right into the Hopper with Sling DVR in customers’ living rooms.”
Finally, Dish quotes the Aereo ruling, which states that a “[public performance] does not extend to those who act as owners or possessors of the relevant product,” which would seem to indicate that services like cloud-based DVRs and DVRs that are accessible from out-of-home are fine, so long as the person accessing that content is the owner of the content.