Testing the legal limits of the U.S. Supreme Court's strike-down of subscription video on demand service Aereo, Fox is now challenging Dish Network's (NASDAQ: DISH) use of nine-year-old Slingbox technology.
In oral arguments before the 9th Circuit Court of Appeals July 7, Fox lawyer Richard Stone and his team tried to reverse a lower court ruling in which a federal judge refused to grant a preliminary injunction against the Dish Anywhere service.
Dish Anywhere uses Slingbox, which allows users to access and watch content from their digital video recorder via IP devices from remote locations--it's a technology that was first introduced by Sling Media in July 2005.
The lower court found no evidence that Dish's use of the technology has harmed Fox. But Stone claims Fox's broadcast network and affiliated stations are losing audience share, because viewership over Dish Anywhere can't be measured.
Stone further argued that the Aereo service--which the Supreme Court ruled violated broadcaster copyrights--was essentially a DVR with a Slingbox attached to it.
Judge Marsha Berzon didn't seem to buy the comparison to Aereo, commenting, "The Supreme Court has all sorts of caveats about how this is about Aereo and nothing else. I don't think you can stand there and say it's the same thing."
Right after the Surpreme Court verdict was announced June 25, Stone wrote a letter to the court, also referencing the decision.
"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 defense as Aereo which have now been rejected by the Supreme Court," Stone wrote.
For its part, Dish's defense is similar to Aereo's--it's the consumers using their own equipment to access content. In terms of legality, however, Dish's key differentiator is that it licenses content while Aereo does not.
So it begins: Fox using Aereo precedent in battle against Dish
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