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Fox Broad. Co. v. Dish Network, L.L.C.

Fox Broad. Co. v. Dish Network, L.L.C.

United States Court of Appeals for the Ninth Circuit

June 4, 2013, Argued and Submitted, Pasadena, California; July 24, 2013, Filed

No. 12-57048

Opinion

SUMMARY1

Copyright / Preliminary Injunction

The  [**3] panel affirmed the district court's denial of a broadcaster's request for a preliminary injunction against a pay television provider's products that skipped over commercials.

The panel held that the district court did not abuse its discretion in holding that the broadcaster failed to demonstrate a likelihood of success on its copyright infringement and breach of contract claims regarding the television provider's implementation of the commercial-skipping products. As to a direct copyright infringement claim, the record did not establish that the provider, rather than its customers, made copies of television programs for viewing. The broadcaster did not establish a likelihood of success on its claim of secondary infringement because, although it established a prima facie case of direct infringement by customers, the television provider showed that it was likely to succeed on its affirmative defense that the customers' copying was a "fair use." Applying a "very deferential" standard of review, the panel concluded that the district court did not abuse its discretion in denying a preliminary injunction based on the alleged contract breaches.

The panel also held that the broadcaster failed  [**4] to demonstrate a likelihood of irreparable harm from the

 [*1070]  OPINION

 [***1590]  THOMAS, Circuit Judge:

Dish Network offers two marsupial-inspired products: the "Hopper," which "hops" over commercials, and a companion box known as a "Joey." Fox Broadcasting Company claims these products are contractually out of bounds and constitute copyright infringement. The district court denied the broadcaster's request for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292, and we affirm.

Plaintiffs Fox Broadcasting Company, Twentieth Century Fox Film Corp., and Fox Television Holdings, Inc. (collectively, "Fox") own the copyrights to television shows that air on the Fox television network. Its primetime lineup includes shows such as Glee, Bones, The Simpsons, and Family Guy. Fox contracts with cable and satellite television service providers to retransmit Fox's broadcast signal for the customers of these providers, known as multichannel video programming distributors. Some such distributors also offer Fox programming via video on demand.  [***1591]  Fox separately licenses its shows to companies such as Hulu, Apple, Netflix, and Amazon, which sell Fox programs online or stream them over the Internet.

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723 F.3d 1067 *; 2013 U.S. App. LEXIS 15075 **; 107 U.S.P.Q.2D (BNA) 1589 ***; Copy. L. Rep. (CCH) P30,462; 41 Media L. Rep. 2285; 58 Comm. Reg. (P & F) 1249; 2013 WL 3814917

FOX BROADCASTING COMPANY, INC.; TWENTIETH CENTURY FOX FILM CORPORATION; FOX TELEVISION HOLDINGS, INC., Plaintiffs-Appellants, v. DISH NETWORK L.L.C.; DISH NETWORK CORPORATION, Defendants-Appellees.

Subsequent History: Later proceeding at Fox Broad. Co. v. Dish Network, L.L.C., 2013 U.S. App. LEXIS 26110 (9th Cir. Cal., Nov. 6, 2013)

Amended by, Rehearing denied by, Rehearing, en banc, denied by Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 2014 U.S. App. LEXIS 1655 (9th Cir. Cal., Jan. 24, 2014)

Reprinted as amended at Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 2014 U.S. App. LEXIS 1657 (9th Cir. Cal., Jan. 24, 2014)

Prior History:  [**1] Appeal from the United States District Court for the Central District of California Dolly M. Gee. D.C. No. 2:12-cv-04529-DMG-SH. District Judge, Presiding.

Fox Broad. Co. v. Dish Network, L.L.C., 905 F. Supp. 2d 1088, 2012 U.S. Dist. LEXIS 169112 (C.D. Cal., Nov. 7, 2012)

Disposition: AFFIRMED.

CORE TERMS

PrimeTime, copies, district court, recording, programs, user, customers, video, on demand, infringement, broadcast, television, breached, fast-forward, license, copyright infringement, preliminary injunction, quality assurance, fair use, succeed, disable, skip, likelihood of success, distribute, secondary, signal, viewer, time-shifting, announcement, subscribers

Civil Procedure, Injunctions, Grounds for Injunctions, General Overview, Remedies, Preliminary & Temporary Injunctions, Appeals, Standards of Review, Abuse of Discretion, Clearly Erroneous Review, De Novo Review, Copyright Law, Copyright Infringement Actions, Civil Infringement Actions, Burdens of Proof, Elements, Copying by Defendants, Ownership, Secondary Liability, Contributory Infringement Actions, Fair Use, Fair Use Determination, Factors, Evidence, Inferences & Presumptions, Presumptions, Contracts Law, Contract Interpretation, Parol Evidence, Irreparable Harm