It appeared that he was talking specifically about "migrating" content from device to device (what DISH's EHD technology does) and that was what was saving DIRECTV from one kind of litigation that DISH was experiencing.
The flaw in the argument is that the DISH EHD content is indeed encrypted but the way they share the keys is different. I'm guessing that DIRECTV uses a similar form of key sharing for WHDS so that the playing device can decode content encrypted by and for another DVR on the same account.
DISH's EHD technology doesn't create copies of the content and that's why I believe it should be immune from litigation.
I disagree, I think he was talking more broadly.
DirecTV does not share the keys when using whole home DVR service. The recording is decoded on the DVR that it is stored on, and then sent out to the other DVR/receiver to be shown, or at least that is the way I have been led to believe it works. This is why they DVRs can only stream to one other device at a time.
I would agree that in this particular instance, Dish seems to be doing fine. Encrypting the recordings so they can only be used by receivers on the same account seems to be good enough for the channels/content owners and they haven't been sued over this, that original decision was a little bit risky though. DirecTV made a more cautios decision in the beginning and decided to encrypt so they can only be used on a specific device just to be on the safe side.
Now that DirecTV has seen that the content owners don't mind it they may indeed consider this on future devices, but for now it seems they have decided that it is not worth going back and redoing all their current systems in order to make it work. Maybe when they come out with new hardware for 4K it will run on completely different software and they can include that feature in those systems.
Sometimes when I reflect back on all the beer I drink I feel ashamed. Then I look into the glass and think about the workers in the brewery and all of their hopes and dreams. If I didn’t drink this beer, they might be out of work and their dreams would be shattered. Then I say to myself, "It is better that I drink this beer and let their dreams come true than be selfish and worry about my liver."
-by Jack Handy