Having just buried broadcast streaming service Aereo under a Supreme Court victory, Fox is invoking that high court precedent in a bid to shutter another television platform.
Fox and others won a high-profile copyright case against upstart Aereo on Wednesday, in which the Supreme Court held in a 6-3 vote that Aereo was offering services akin to a cable company and therefore needed the broadcasters' permission to retransmit their content to online viewers. Armed with that decision, Fox told a federal appeals court that the high court's decision means Dish's Hopper DVR sideloading platform and the Dish Anywhere streaming platform should also be declared illegal.
Fox lawyer Richard Stone wrote (PDF) to the 9th US Circuit Court of Appeals, which is set to hear the Fox-Dish case next month in California, saying:
In Aereo, the Supreme Court held that Aereo's unauthorized retransmission of Fox's television programming over the Internet constitutes an unauthorized public performance of Fox's copyrighted works. Dish, which engages in virtually identical conduct when it streams Fox's programming to Dish subscribers over the Internet—albeit also in violation of an express contractual prohibition—has repeatedly raised the same defenses as Aereo which have now been rejected by the Supreme Court. Among other things, the Supreme Court rejected Aereo's argument... that it is merely an equipment provider and that Aereo's subscribers were the ones transmitting content over the Internet to themselves.
Aereo had maintained that it wasn't a cable provider but instead was offering viewers a newfangled method to capture free broadcast television over the airwaves with tiny antennas. Aereo customers rent up to two dime-sized antennas that are housed in facilities across the country. The antennas capture local, over-the-air broadcasts and funnel them to local customers in real time. The content is freed to stream to most any Internet-connected device. Another antenna syncs with a DVR for later viewing for about $12 monthly.
Broadcasters decried the process as "technological gimmickry" to skirt copyright and other retransmission laws.
For its part, Dish uses a protocol created by streaming service Slingbox, operated by a former Dish partner. Allowing Dish consumers to stream Fox content without permission, Stone wrote, amounts to an "unauthorized public performance."
Dish countered in a Thursday filing with the appeals court and said the Aereo decision was not analogous to Dish's streaming service.
"The first distinction lies in the Court’s constant refrain that Aereo looks just like the cable companies Congress intended to cover with the Transmit Clause, which took signals off the air and retransmitted them to the public without authority or payment," Dish attorney E. Joshua Rosenkranz wrote (PDF) to the court. "Dish pays retransmission fees to Fox—Sling does not implicate pirating signals. Customers pay for the right to receive works, with Fox’s authorization, and do receive them at home before sending them to themselves."
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