subscription. If the device stayed disconnected for too long, the recordings stored on it were
deleted.^218
The court denied the preliminary injunction on the grounds that Fox had not
demonstrated irreparable harm. The court rejected the following bases that Fox asserted for
irreparable harm:
-- Fox asserted that if Dish were allowed to offer the new services, other multi-channel
video programming distributors (MVPDs) that competed with Dish and with whom Fox also had
agreements would demand the same rights or other concessions to mitigate the risk of losing
subscribers to Dish. The court found that Fox had presented no compelling evidence that other
MVPDs would demand rights that were yet to be legally established rather than wait to see the
result of the litigation before altering their contracts with Fox. And, because the new services
were available only as an add-on to paid satellite television subscriptions, they did not threaten to
diminish the value of the Fox programs. If Fox were to prevail on its claims, damages would be
calculable.^219
-- Fox asserted it was likely to lose revenue from digital download services like
Amazon.com and Apple iTunes, which Hopper Transfers threatened to supersede. The court
rejected this argument, noting that Fox had not explained why its own digital download contracts
with companies like Apple could not serve as benchmarks in calculating any damages caused by
Hopper Transfers, were it found illegal. Nor had Fox refuted evidence that multi-screen live
linear platform (MLLP) viewing enabled by Dish’s new services increases viewership, and that
historically, increased viewership can enhance viewer loyalty and increase revenue.^220
-- Fox argued that Dish’s services would cause it to lose one of its most important and
valuable rights – the ability to control the timing and manner in which its copyrighted programs
were distributed. The court rejected this argument, noting that the new services were available
only to preexisting Dish subscribers, and the fact that Fox and Dish already had a distribution
agreement suggested that any loss of control could be readily remedied because the number of
users was limited and ascertainable. In addition, the wide variety of similar services available to
consumers would facilitate the calculation of damages, if necessary.^221
-- Fox also suggested irreparable harm from the fact that, because the new services were
not authorized by Fox, they were not sufficiently protected from piracy and other online security
risks. The court rejected this, noting that Sling hardware encrypted content to protect against
piracy, and neither of the new services allowed users to make copies that could be duplicated or
transferred beyond what was immediately authorized.^222
(^218) Id. at 8.
(^219) Id. at 15-17.
(^220) Id. at 18-19.
(^221) Id. at 19-20.
(^222) Id. at *21-22.