In House - The FindLaw Corporate Counsel Blog

Unlike Aereo, DISH Network's Streaming Service Doesn't Infringe

Last year, the Supreme Court all but destroyed Aereo, a company that made its money by streaming over-the-air broadcasting to people's computers and mobile devices.

Because Aereo, unlike cable TV companies, didn't pay broadcasters and content providers for Aereo's "performance" of their work, the Court found copyright infringement. At worst, the decision could have doomed all streaming services.

Victory for Streaming

For now, that worry seems to be unfounded. Judge Dolly M. Gee of the U.S. District Court for the Central District of California ruled last week (in a decision unsealed yesterday) that a DISH Network service allowing streaming to computers and mobile devices didn't infringe on Fox's copyrights.

"DISH Anywhere" allows DISH subscribers to stream live or recorded shows to computers or mobile devices, and -- this is really the important part -- they can skip ads, which directly affects Fox's bread and butter.

Hmm, streaming to devices? Sounds a lot like Aereo, and that's what Fox wanted Gee to conclude too. But she wasn't convinced. Overwhelmingly dispositive was the fact that DISH had a license to retransmit Fox's content through its satellite system, something Aereo lacked. DISH did not "receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did."

The programs were already in DISH's "private channels," and they were there because Fox and DISH had agreed that they could be there. "Any subsequent transfer of the programming by DISH Anywhere takes place after the subscriber has validly received it, whereas Aereo transmitted its programming to subscribers directly, without a license to do so." Pretty cut and dry.

After finding that DISH couldn't have "performed" Fox's programs because the programs were already in DISH's system pursuant to a license agreement, Gee made short work of Fox's alternative theories. DISH could not be liable for secondary infringement because there's no primary infringement. Once the work is transmitted to the subscriber, the subscriber is free to do with the work anything permitted by law, including streaming to a device the subscriber owns.

It's Not as Change-y as It Seems

Aereo is not, apparently, a unilateral game changer. Some modicum of common sense still carries the day, and 1984's Sony v. Universal is still in full effect. Time-shifting, and now "space-shifting," are still perfectly permissible. So, too, are technologies that allow a subscriber to fast-forward through content, even if that content happens to be advertising.

This won't stop content providers, however, from locking down subscriber use through new contracts that will probably prohibit retransmission. This requires some business calculation and probably some amount of "sucking it up" on Fox's part. Who in the year 2015 wants to pay for a service that won't let her watch TV shows on her iPad?

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