-- Finally, Fox asserted that, because the new services would divert viewers from
traditional viewing to Internet-based viewing (which tracking services like Nielsen were at that
time unable to track), they would inhibit Fox’s efforts to ascertain an accurate demographic
profile of its audience, which would erode advertising value. The court rejected this, noting that
although Nielsen did not currently track online viewing, it had announced that it would soon
begin measuring viewership delivered through online connections. The court found Nielsen’s
announcement at least demonstrated that the trend in viewing practices was not going unnoticed,
and it strongly suggested that the entities that gathered advertising data were ready and willing to
adapt to the new landscape.^223
On appeal, the Ninth Circuit affirmed in a brief, non-precedential opinion finding that the
district court had committed no legal error and made no clearly erroneous factual findings in its
denial of a preliminary injunction.^224
The Rulings on Motion for Summary Judgment
After discovery, Fox moved for summary judgment on Fox’s claims for direct copyright
infringement.^225 With respect to the PTAT service, the district court began by noting that the
Ninth Circuit had upheld its earlier finding that the user, not Dish, made the PTAT copies. The
district court noted that the current record reflected essentially the same facts about how PTAT
worked and how much control Dish had over the process as it did at the preliminary injunction
stage. Fox contended that the Supreme Court’s Aereo decision (discussed in Section II.B.10
below) altered the test for direct infringement by rejecting the argument that only the subscriber
who pushes the button initiating the infringing process is liable for direct infringement. The
district court ruled, however (for the reasons discussed in Section II.B.16 below) that Aereo did
not fundamentally alter the volitional conduct requirement for direct infringement. The court
noted that, although more than one actor may be liable for direct infringement, there must still be
some volitional conduct for direct liability. A system that operates automatically at a user’s
command to make a recording does not in itself render the system’s provider a volitional actor
for purposes of direct infringement. While Dish had set certain parameters and controls for
PTAT, PTAT was essentially a more targeted version of a DVR that is set to make block
recordings or recordings of an entire season of a show. The ability to set a DVR and then leave
it to automatically record without having to select individual programs or set it repeatedly for
each recording occasion was not unique to PTAT, and was not enough to show direct
infringement by the service provider.^226
A similar volitional conduct analysis applied to any direct infringement claim based upon
“distribution.” The court found that PTAT did not “distribute” Fox’s programming because, as
the court had previously held in its ruling on the first motion for a preliminary injunction,
(^223) Id. at 22-23.
(^224) Fox Broadcasting Co. v. Dish Network L.L.C., 583 Fed. Appx. 618 (9th Cir. 2014) (non-precedential).
(^225) Fox Broadcasting Co. v. Dish Network LLC, 2015 U.S. Dist. LEXIS 23496 at 5 (C.D. Cal. Jan. 21, 2015).
(^226) Id. at *56-59.