other networks chose to make available during primetime, and Dish recorded the programs only
if the user made the initial decision to enable PTAT. The court concluded that the default
settings did not support Fox’s contention that Dish, rather than its users, made the copies.
- Dish decided the length of time each copy was available for viewing before automatic
deletion after a certain number of days and a user could neither delete nor preserve the original
PTAT copy before that time. The court was not convinced, however, that this control, being
exercised after the creation of the copies, was relevant to whether Dish caused the copies to be
made in the first place, which were created only upon the users choosing to enable PTAT. - Dish decided when primetime recordings started and ended each night and the user
could not stop a copy from being made during the copying process, but had to wait until the
recording ended before disabling the link to it on the hard drive. The court acknowledged that
these limitations on user choice evinced Dish’s greater participation in the copying process, but
nevertheless found that such involvement was not materially different from an Internet service
provider that copied a file in automatic response to a user’s request, as in the Loopnet case.
Although Dish defined some of the parameters of copyright for time-shifting purposes, it was
ultimately the user who caused the copy to be made by enabling PTAT.
Accordingly, the court ruled that it was the user, not Dish, who was the most significant
and important cause of the copy, and Fox had therefore not established a likelihood of success on
the merits of its claim that by Dish directly infringed on its exclusive right to reproduction
through PTAT.^200
The court next ruled that Dish’s making of the QA copies did not constitute a fair use
under the application of the four statutory fair use factors. Under the first factor, while the QA
copies themselves were not sold or otherwise monetized, they were made for the commercial
purpose of providing a high quality commercial skipping product that more users would want to
activate. The copies were not transformative because they did not alter their originals with new
expression, meaning or message. The first factor therefore weighed against fair use. The
creative nature of the copyrighted works copied entitled them to heightened protection and cut
against fair use under the second factor. The third factor also weighed against Dish because the
entire works were copied, although the court noted that the third factor was of considerably less
weight than the other factors due to the limited nature of the ultimate use.^201
Turning to the fourth factor, the court noted that the QA copies were used to perfect the
functioning of AutoHop, a service that, standing alone, did not infringe. However, the record
showed that a market existed for the right to copy and use Fox programs, given that Fox licensed
copies of its programs to companies including Hulu, Netflix, iTunes, and Amazon to offer
viewers the Fox programs in various formats. In fact, the record suggested that Dish chose to
offer AutoHop to its subscribers in order to compete with other providers who paid for the rights
to use copies of the Fox programs through licensing agreements. By making an unauthorized
(^200) Id. at *1099-1102.
(^201) Id. at 1104.