Finally, turning to the issue of Dish’s direct infringement by making the QA copies, the
Ninth Circuit ruled that the district court did not err in concluding that the QA copies were not a
cause of Fox’s alleged harm. That Dish used the copies in the process of implementing AutoHop
did not suggest that those copies were integral to AutoHop’s functioning. Rather, the record
demonstrated that the AutoHop files containing the marking of commercials, which were the
files distributed to users, were created using an entirely separate manual process and the QA
copies were used only to test whether the marking process was working correctly. The Ninth
Circuit also determined that the district court did not err in holding that monetary damages could
compensate Fox for any losses from the QA copies. Accordingly, the Ninth Circuit concluded
that the district court did not abuse its discretion in declining to grant Fox a preliminary
injunction.^215
In Mar. 2014 Dish reached a settlement with the plaintiff Walt Disney Co. under which it
agreed to disable the AutoHop function for ABC programming during the first three days after
shows aired. In return Dish received the rights to stream content from ABC, ESPN and other
Disney properties through a new, Internet-based TV service.^216
The Second Preliminary Injunction Ruling
On Feb. 21, 2013, Fox filed a first amended complaint and again sought a preliminary
injunction against the following new functionalities that Dish had introduced in January of 2013
with its second generation Hopper DVR set-top box called “Hopper with Sling” that had Sling
technology (which transcoded video content from its source at the DVR set-top box and
transmitted it to remote devices over the Internet) built into the box itself:
-- Dish Anywhere, a mobile access application utilizing the Sling technology to allow
subscribers to watch live television or television programs recorded on the Hopper from any
location on remote devices connected to the Internet. No copies were made to facilitate the
remote viewing via Dish Anywhere. The 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.^217
-- Hopper Transfers, which allowed Dish customers to copy pre-recorded programs from
their DVRs to Apple iPad tablets (and later, other types of mobile devices) so they could be
viewed on the go. An app paired the iPad (or other mobile device) with the customer’s Hopper
with Sling using the home wireless network, after which the customer could then use his or her
home wireless network to copy recordings from the Hopper with Sling onto the iPad (or other
mobile device). A Hopper Transfers-enabled device was required to reconnect via wireless
Internet with the Hopper with Sling at least once every 30 days to verify the user’s Dish
(^215) Id. at 1072-73.
(^216) Bill Donahue, “Dish, ABC Settle Ad-Skipping Fight with Broad TV Deal,” Law360 (Mar. 7, 2014), available as
of Mar. 7, 2014 at http://www.law360.com/articles/515052/print?section=IP.
(^217) Fox Broadcasting Co. v. Dish Network, L.C.C., 2013 U.S. Dist. LEXIS 187499 at *2-7 (C.D. Cal. Sept. 23,
2013), aff’d, 583 Fed. Appx. 618 (9th Cir. 2014) (non-precedential).