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High Stakes for Television Networks in Failure To Unseat Dish Customers Recording Device

By Robert J. Bernstein and Robert W. Clarida

The “Hopper,” the recording and commercial-skipping technology developed by Dish Network, first survived a preliminary injunction motion brought by Fox Broadcasting Co. in 2012, then prevailed on appeal this summer in a decision by the U.S. Court of Appeals for the Ninth Circuit. Fox Broadcasting Co. v. Dish Network, 12-57048.

Relying on the 1984 Supreme Court precedent involving use of a VCR to “time-shift” home viewing of television shows, Sony v. Universal City Studios, 464 U.S. 417 (1984), and the 2008 U.S. Court of Appeals for the Second Circuit decision concerning Cablevision's remote DVR technology, Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008), the Ninth Circuit appears to have concluded that “the more things change, the more they remain the same.” Thus, the Ninth Circuit determined that the recording of Fox programs, although enabled by the Hopper in conjunction with a complex technological infrastructure developed and run by Dish, was nevertheless directed by the customer for private, noncommercial use and constituted a fair use.

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