Fox moves to use Aereo ruling against Dish streaming service
A day after a surprise US supreme court decision to outlaw streaming TV service Aereo, US broadcaster Fox has moved to use the ruling to clamp down on another internet TV service.
Fox has cited Wednesday’s ruling – which found Aereo to be operating illegally – to bolster its claim against a service offered by Dish, America’s third largest pay TV service, which streams live TV programming over the internet to its subscribers and allows them to copy programmes onto tablet computers for viewing outside the home.
The move has fueled criticism of Wednesday’s ruling from groups that have argued the decision will limit consumer choice, hand more power to broadcasters and stifle innovation.
Immediately after Wednesday’s ruling, Fox’s legal team submitted the supreme court’s Aereo decision to bolster its case against Dish. Oral arguments in the case are scheduled before the ninth circuit court of appeals on 7 July in Pasadena, California.
Dish and Fox have clashed over several services offered by the satellite TV provider including Hopper, a service that allowed customers to record all of a prime time broadcasters schedule and AutoHop, which allowed them to skip all of a broadcaster's ads.
The ninth circuit denied Fox’s attempts to close down Hopper in 2013 and refused to rehear the case in January this year. Fox will challenge that decision at an oral hearing in Pasadena.
The clash centres on Dish’s Dish Anywhere streaming service and its Hopper DVR “sideloading” feature. Dish Anywhere allows customers to watch live TV or the content of their DVR on mobile devices, laptops and desktop computers. The sideloading feature allows content from a DVR to be transferred to an iPad. Dish uses technology developed by Slingbox, which makes devices that allow customers to remotely stream their TV service. Slingbox is owned by Dish’s former parent company and current technology partner EchoStar.
Fox’s lawyers believe the Aereo ruling strengthens their case against Dish. In a letter to the court Richard Stone, partner at Jenner & Block, wrote that the supreme court had ruled Aereo’s service constitutes an “unauthorized public performance of Fox’s copyrighted works.”
“Dish, which engages in virtually identical conduct when it streams Fox’s programming to Dish subscribers over the internet – albeit also in violation of an express contractual prohibition – has repeatedly raised the same defenses as Aereo which have now been rejected by the supreme court,” he wrote.
Stone highlighted that the court had specifically rejected Aereo’s assertion that it is “merely and equipment provider” and that Aereo’s subscribers were the ones transmitting content.
The supreme court decision was praised by broadcasters who argue that Aereo undermined their business and would force them to introduce a paywall for their channels. The major broadcaster receives hundreds of millions of dollars per month in retransmission fees from cable companies for their channels whereas Aereo was retransmitting them for free.
But consumer groups attacked the decision. Gene Kimmelman, president and CEO at Public Knowledge, which had submitted a brief with the court in favour of Aereo, said: “It is very unfortunate for consumers that the supreme court has ruled against Aereo, which has provided an innovative service that brings consumers more choices, more control over their programming, and lower prices."
"We're concerned that the court's misreading of the law leaves consumers beholden to dominant entertainment and cable companies that constantly raise prices and gouge consumers.
"This decision, endangering a competitive choice for consumers, makes it all the more important for the Department of Justice and Federal Communications Commission to guard against anti-competitive consolidation, such as the Comcast-Time Warner Cable merger."
Jason Buckweitz, associate director for the Columbia Institute for Tele-Information, said the Dish case had many differences to Aereo, not least that Dish has a license to broadcast Fox and is not just taking its programming. But he said the Aereo case was likely to be cited by broadcasters looking to reach better terms or shut down new services they believe harm their businesses.
“They do not want to let go of what works for them,” he said. “What’s sad is that the brakes are going to be put on innovation. Do you want to be a company that tries new things or do you want to play it safe?”
He said the 6-3 ruling by the supreme court was likely to embolden broadcasters just as it would scare off innovations. “Broadcasters now have every incentive to litigate everything,” he said.
Fox declined to comment. Dish did not return calls for comment.