Last week, we told you about an attempt by broadcasters — still bloody from their Supreme Court gutting of Aereo — to use the ruling in that case to shut down Dish’s Dish Anywhere streaming service. But yesterday, a federal appeals court said Dish Anywhere could continue pending the outcome of a trial.
The lawsuit, for those coming late to class, involves Dish Anywhere, which allows Dish subscribers to use Slingbox-equipped DVRs to access live and recorded TV content over the Internet. The broadcasters believe this infringes on their copyright. Dish says it’s just another way for someone to watch programming from their DVR.
In documents filed with the court immediately after the Aereo ruling, the broadcasters, led by FOX, argued that Dish “engages in virtually identical conduct” to Aereo by allowing customers to stream the broadcasts over the Internet. Thus, according to FOX, Dish is 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.
Dish countered by pointing out that the SCOTUS ruling on Aereo stated that the streaming service was acting like a pay-TV operation without paying the retransmission fees that satellite and cable companies pay. Since Dish already pays retransmission fees, and isn’t pirating network feeds, the company claimed that the Aereo comparison doesn’t hold water.
The appeals court opinion [PDF] doesn’t even mention the Aereo case in explaining why it is denying FOX’s petition for a preliminary injunction against Dish Anywhere.
Instead, it affirmed the decisions of the lower court, which had held that an injunction wasn’t needed because there is already a contractual relationship between Dish and FOX and the network “failed to show that harm absent an injunction could not be remedied with money damages.”
The district court had also found that FOX failed to show that Dish Anywhere, already available for several years, “had yet caused FOX’s business any harm,” so there was no need for injunction to prevent further lack of harm.
While the appeals court opinion doesn’t cite Aereo, Multichannel News reports one judge on the panel said during arguments that Dish Anywhere is “completely different technology” from Aereo and that “the Supreme court has all sorts of caveats in the opinion about how this was about Aereo and nothing else and a lot of the ‘nothing elses’ seem to be pretty similar to Slingbox.”
With the appeals court ruling, the lawsuit seems destined for trial in early 2015.