content was transferred via Internet directly from the Hopper with Sling to the remote device and
was not stored in and did not pass through any central server.^523
Fox contended that Dish had publicly performed Fox’s copyrighted works by streaming
them over the Internet to Dish subscribers using Dish Anywhere with Sling. Fox asserted that
the Supreme Court’s decision in Aereo (discussed in Section II.A.4(aa) above) was a game-
changer that governed the outcome of its copyright claims in this case. The district court
disagreed. The district court noted that the Supreme Court did not expressly address the general
volitional conduct requirement for direct liability in Aereo. Because the volitional conduct
doctrine was a significant and long-standing rule, adopted by all Courts of Appeal to have
considered it, the district court found that it would be folly to presume that Aereo categorically
jettisoned it by implication.^524
Instead, the district court found that the majority analysis in Aereo could be reconciled
with the volitional conduct requirement. The Aereo court had distinguished between an entity
that engages in activities like Aereo’s and one that merely supplies equipment that allows others
to do so. Aereo held that a sufficient likeness to a cable company amounts to a presumption of
direct performance, but the district court opined that the distinction between active and passive
participation remains a central part of the analysis of an alleged infringement.^525 Noting that the
Aereo majority had relied on the fact that Aereo’s system received programs that had been
released to the public and carried them by private channels to additional viewers, the district
court distinguished the instant case as follows:
DISH does not, however, receive programs that have been released to the public
and then carry them by private channels to additional viewers in the same sense
that Aereo did. DISH has a license for the analogous initial retransmission of the
programming to users via satellite. Aereo streamed a subscriber-specific copy of
its programming from Aereo’s hard drive to the subscriber’s screen via individual
satellite when the subscriber requested it, whereas DISH Anywhere can only be
used by a subscriber to gain access to her own home STB/DVR and the authorized
recorded content on that box. Any subsequent transfer of the programming by
DISH Anywhere takes place after the subscriber has validly received it, whereas
Aereo transmitted it programming to subscribers directly, without a license to do
so.^526The court summarized that the ultimate function of Dish Anywhere was to transmit
programming that was already legitimately on a user’s in-home hardware to a user’s Internet-
connected mobile device. Relying on external servers and equipment to ensure that content
travelled between those devices properly did not transform that service into a traditional cable
(^523) Fox Broadcasting Co. v. Dish Network LLC, 2015 U.S. Dist. LEXIS 23496 at 9-10, 14-16 & 18-19 (C.D. Cal.
Jan. 21, 2015).
(^524) Id. at 28-29, 30- 33
(^525) Id. at 34.
(^526) Id. at 34-36 (citations omitted).