Dish's Hopper legal win against Fox stands -- again

The Dish Network DVR that automatically skips commercials won another round in a US court of appeals, which again rejected 21st Century Fox's petition to halt the feature.

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Joan E. Solsman
2 min read
Dish's Auto Hop enable screen. Dish

A federal appeals court Friday denied broadcaster 21st Century Fox's appeal to make Dish Network Corp.'s Hopper ad-skipping service temporarily unavailable to consumers.

At the U.S. Court of Appeals for the Ninth District, a panel of the court denied Fox's request for an "en banc" rehearing, which means the entire bench of the Ninth Circuit court would rehear the case rather than the smaller panel. It also rejected another panel rehearing.

According to the opinion, the judges involved voted against the rehearing because the lower Los Angeles court's decision appropriately determined Fox failed to show a likelihood of success in its claims of copyright infringement and breach of contract.

A Fox spokesman said the broadcaster was disappointed in the decision but recognized that preliminary injunctions are rarely overturned on appeal.

"This ruling was based on a factual record from more than a year ago. Now that we have gathered more evidence, we are confident that we will ultimately prevail on all of our claims," Fox representative Scott Grogin said.

In addition to Fox, CBS (the parent company of CNET) and other broadcasters have filed separate suits against Dish over its AutoHop feature.

Dish General Counsel R. Stanton Dodge, in a statement, called it a victory for American consumers. "We are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control," he said.

So far the court hasn't prevented Dish from selling the product. In August 2012, Fox filed for a preliminary injunction against the Hopper, but in November, a California district court denied the request. Fox appealed. In July, the Ninth Circuit court denied an appeal. With Friday's decision reiterating the appeal's denial, decision the Fox copyright and contract lawsuit will proceed with Hopper still up and running.

The networks say the ad-skipping feature threatens to destroy the advertising system that supports their content and that Dish doesn't have the right to tamper with advertising from broadcast replays for its own economic and commercial advantage.

Dish has argued that consumers have the right to privately watch shows anywhere, anytime.