Fox Files for Preliminary Injunction Barring Dish’s PrimeTime Anytime Service
Dish Networks’ PrimeTime Anytime is an “attempt to camouflage” its copyright infringement of TV programming that occurs every night, Fox Entertainment argued, seeking a court injunction barring the service.
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PrimeTime Anytime, which became available in May via Dish’s Hopper satellite receiver, is available to Dish subscribers with AutoHop, which strips out commercials from copies of TV networks’ programs, Fox said. The service’s software was updated in July with “cosmetic” changes to PrimeTime Anytime settings meant to disguise the infringement, Fox said. Dish officials weren’t available for comment. Fox filed a motion in U.S. District Court, Los Angeles, last week seeking a preliminary injunction.
Fox, CBS and NBC Universal each sued Dish separately in May, with NBCU arguing that the satellite service operator didn’t have the authority to tamper with broadcast replays. Dish also filed suit seeking a ruling the AutoHop doesn’t violate copyrights since fast-forwarding through commercials has been available since the video cassette recorder’s arrival.
"While the software update effectively concedes that PrimeTime Anytime as originally distributed and operated by Dish was infringing, it does not solve the problem,” Fox said. “PrimeTime Anytime still breaches the parties’ contracts and infringes Fox’s copyrights on a massive scale, night after night. The need for a preliminary injunction could not be greater."
While Fox programs first air in primetime and then are available eight days later for users with a PC and high-speed connection, PrimeTime Anytime allows the storage and on-demand access for eight days to HD programming from ABC, CBS, Fox and NBC, Fox said. The programming is stored on the Hopper’s two terabyte hard drive that’s partitioned for separate storage of PrimeTime Anytime fare. Once PrimeTime Anytime is activated, the networks’ primetime programs are automatically copied every night to the Hopper’s hard drive, Fox said. About 275,000 Dish subscribers have the Hopper with PrimeTime Anytime, a number that’s expected to increase to 1.3 million by year-end, Fox said.
Dish’s new service violates its retransmission consent agreement with Fox that was signed in 2002 and amended in 2010, Fox said. To implement PrimeTime Anytime, Dish changed the architecture of its satellite system, assigning the four major networks’ local broadcasts to the same satellite transponder, Fox said. Hopper software then was designed to allow the four major networks’ programming to be captured by a single tuner in the Hopper and recorded, Fox said.
PrimeTime Anytime and AutoHop violate the retrans agreement in “multiple ways,” including a provision barring the copying of Fox’s entire primetime schedule every night, Fox said. Dish also violates a “key restriction” of the agreement’s video-on-demand (VoD) clause, which bars disabling of the commercials, Fox said. While the agreement allows Dish to provide VoD to subscribers, the rights are “expressly conditioned on Dish disabling any fast-forwarding of commercials during VoD playback, Fox said. “Dish engineered PrimeTime Anytime to accomplish the wholesale, unauthorized recording of primetime programs en masse,” Fox said.