BARRY BARNETT GUEST BLOGGER

Barry Barnett has been a Guest Blogger in the past, his Blawgletter provides great thoughts, and insights. I read his blogs regularly. Over the years Barry and I have had a number of cases together and he is an outstanding trial partner at Susman Godfrey.

You Have the Right to Skip Fox Ads, Ninth Circuit Rules

Rupert Murdoch’s TV empire in the U.S. has lost its bid to stop you from avoiding the ads that Fox embeds in its shows — yourGlees, your The Simpsonses, and your So You Think You Can Dances.

The Ninth Circuit turned back Fox’s appeal of an order that denied its motion to enjoin Dish from providing its PrimeTime Anytime recording feature to subscribers. Fox Broadcasting Co., Inc. v. Dish Network, L.L.C., No. 12-57048 (9th Cir. July 24, 2013).

Fox argued that Dish had promised in its rebroadcast license not to let subscribers fast-forward through ads and not to make Fox content available "on demand". Fox also claimed that PrimeTime Anytime resulted in both direct and secondary infringement of Fox’s copyrights in its programming content.

The panel held that Fox hadn’t proven infringement of its copyrights by Dish. Subscribers — not Dish — made copies of the Fox shows by flipping a switch, the court noted. That meant Dish did not infringe directly. Nor did Dish’s conduct make it guilty of secondary infringement. Because the subscribers made copies mainly for "time-shifting" purposes, the panel ruled, they had a valid "fair use" defense, and their fair use also exonerated Dish.

The contract issues vexed the panel more. The ruling against Fox turned on a squinty view of what "distribute . . . on an interactive, time-delayed, video-on-demand or similar basis" means. Does giving subscribers a chance to copy and replay Fox content amount to distributing it on a "basis" "similar" to "time-delay[]" or "video-on-demand"? The panel didn’t decide, but it hinted that it very well might.