Fox Broadcasting continued its attack on Dish Network’s Hopper and Slingmedia technology in the 9th Circuit Court of Appeals, in California.
Buoyed by the broadcasting industry’s success in seeing the derailment of Aereo, Fox’s legal team is looking to reverse a lower court’s ruling that Dish’s Dish Anywhere products were legal.
Richard Stone of Jenner & Block, representing Fox, said that stations do suffer harm because Nielsen does not measure ratings from the devices. “We are losing viewership because it is not being measured,” he said. Fox argued that permitting Hopper to continue would affect its retransmission negotiations with other multichannel distributors.
Stone compared Dish’s Sling offerings to Aereo that last month was halted after the Supreme Court ruled that it was infringing in offering broadcast streams without permission. Although Dish does license rights to retransmit Fox content, Stone said its contract with Fox prohibits it from streaming their stations over the Internet.
However, the 9th Circuit’s judge, Marsha Berzon was clearly sceptical of the Aereo/Dish-Sling comparison, saying ““The Supreme Court has all sorts of caveats about how this is about Aereo and nothing else,” she said, adding, “I don’t think you can stand there and say it’s the same thing.”
Dish Network’s legal team counter-argued that the Aereo decision did not impact their products. “Sling is just like a DVR or VCR, it is built right into the Hopper with Sling DVR in customers’ living rooms” whereas Aereo used antennas.