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Appeals Court Denies `Hopper’ Injunction Bid

Englewood, Colo. – A federal appeals court Wednesday denied a motion to block DISH Network’s Hopper ad-skipping DVR function, upholding an earlier California district court denial of a preliminary injunction in the case. 7/24/2013 11:49:00 AM Eastern

Englewood, Colo. – A federal appeals court Wednesday denied a motion to block DISH Network’s Hopper ad-skipping DVR function, upholding an earlier California district court denial of a preliminary injunction in the case.

A three-judge panel of Ninth Circuit ruled 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.”

Fox had sued DISH for breach of contract and copyright infringement, claiming the Hopper’s PrimeTime Anytime and AutoHop commercial skipping features violated copyright law and a retransmission contract DISH had signed with Fox.

DISH’s PrimeTime Anytime feature enables consumers to record primetime shows on up to each of the four broadcast networks (ABC, CBS, NBC and Fox) and save them for up to eight days. The AutoHop feature provides the ability for consumers to play back certain PrimeTime Anytime recordings commercial-free, starting the day after broadcast.

Fox had asked the appeals court to reverse a California District Court’s refusal to grant a preliminary injunction while the underlying suit is being decided.

The appeals court 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.”

The ruling was not on the merits of the case, but did give DISH executives cause to celebrate:

“DISH is pleased that the Ninth Circuit Court of Appeals has affirmed the district court’s 2012 order denying Fox’s preliminary injunction motion. In so doing, the courts continue to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop – key features of the Hopper Whole-Home HD DVR,” DISH said in a statement. “This decision is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control.”

Fox issued a statement saying: “We are disappointed in the court's ruling, even though the bar to secure a preliminary injunction is very high. “This is not about consumer choice or advances in technology.  It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly.”

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