the default settings caused the Hopper to record the entire primetime window on all four of the
major networks every day of the week. A user could begin watching the recorded programs
immediately after PTAT started recording, and could cancel a particular PTAT recording on a
given day up until 20 minutes before primetime programming began. All PTAT recordings were
stored locally on the Hopper in users’ homes. Unless the user selected otherwise, PTAT
recordings were automatically deleted after eight days. The Hopper also worked with the “Sling
Adapter,” which allowed subscribers to view Hopper content on their computers and mobile
devices via the Internet.^197
AutoHop was a feature that allowed users to skip commercials in PTAT recordings with
the click of their remote control. If AutoHop was available for a particular PTAT program, the
user was given the option to enable it for that show. If the user enabled AutoHop, the Hopper
would automatically skip commercial breaks during that program. Markers inserted into the
PTAT recordings to mark the beginning and end of the commercials were checked manually by
technicians who viewed a separate quality assurance (“QA”) copy of the recording made by Dish
and stored on its servers. The technician would view the QA recording, fast-forwarding through
the program itself to the commercial breaks, to ensure that the markings were accurate and no
portion of the program was cut off. If the QA copies revealed an error in the marking process,
technicians could correct the error on a later broadcast to ensure that AutoHop functioned
properly for users who enabled it. If there was not enough time to correct a marking error before
the last broadcast ended, then AutoHop would not be available for that particular show.^198
Fox sought a preliminary injunction against the PTAT and AutoHop functions on
grounds of copyright infringement. The court turned first to whether Fox could have secondary
liability for any infringing acts of its subscribers. Applying the Supreme Court’s Sony case, the
court noted that nothing suggested Hopper users were using the PTAT copies for anything other
than time-shifting in their homes or on mobile devices, an activity determined to be a fair use in
Sony. Because there was therefore no direct infringement on the part of PTAT users, Dish could
not have secondary copyright liability.^199
The court then turned to whether Dish could have liability for direct copyright
infringement for the making of the PTAT copies or the QA copies of Fox’s programming.
Citing the Netcom and Cablevision cases, the court concluded that it was Dish’s subscribers, and
not Dish itself, who were making the copies. The court considered the various ways in which
Fox attempted to distinguish the facts at hand from the Cablevision case:
- Dish decided which networks were available on PTAT and defaulted the PTAT
settings to record all four networks. Those decisions, while undoubtedly discretionary authority
that Dish maintained, were similar to Cablevision’s unfettered discretion in selecting the
programming available for recording. But Dish had no control over what programs Fox and the
(^197) Fox Broadcasting Co. v. Dish Network, L.C.C., 905 F. Supp. 2d 1088, 1093-95 (C.D. Cal. 2012), aff’d, 723
F.3d 1067 (9th Cir. 2013).
(^198) Id. at 1096.
(^199) Id. at 1097-98.