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In Aereo’s wake, Fox targets Dish’s TV streaming service


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#1 OFFLINE   Athlon646464

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Posted 27 June 2014 - 02:49 PM

In Aereo’s wake, Fox targets Dish’s TV streaming service
 
(ArsTechnica.com/) - Having just buried broadcast streaming service Aereo under a Supreme Court victory, Fox is invoking that high court precedent in a bid to shutter another television platform.
 
Fox and others won a high-profile copyright case against upstart Aereo on Wednesday, in which the Supreme Court held in a 6-3 vote that Aereo was offering services akin to a cable company and therefore needed the broadcasters' permission to retransmit their content to online viewers. Armed with that decision, Fox told a federal appeals court that the high court's decision means Dish's Hopper DVR sideloading platform and the Dish Anywhere streaming platform should also be declared illegal.
 
 
Screen-Shot-2014-06-27-at-10.56.48-AM-64
 
Thank you to 'dpeters11' for the tip on this story.

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#2 OFFLINE   dpeters11

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Posted 27 June 2014 - 02:55 PM

I honestly can't even begin to see the similarity here. It seems to me Aereo was very different, they were charging for the service and not paying the broadcasters. Dish does pay them.



#3 OFFLINE   PCampbell

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Posted 27 June 2014 - 02:56 PM

If you are streaming from Dish you have payed for the programming. If Fox wants to get payed twice then its time to let me drop Fox.


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#4 OFFLINE   inkahauts

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Posted 27 June 2014 - 03:43 PM

Yeah they are trying to end sling and other companies like it is what they are trying to do. Such a totally different world.

#5 OFFLINE   Stewart Vernon

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Posted 27 June 2014 - 05:41 PM

Apples meet oranges.

 

Sling is a personal use service like the DVR or in the olden days of the VCR.  Personal use long ago won the day in allowing you to make a "copy" for personal use... and Sling is an extension of that.

 

You should be allowed to use Sling on the services that you already pay for... but what would be illegal is if you used your Sling to allow a neighbor or a friend to watch your TV without subscribing...  As long as it is you or your family using the Sling, then there's no issue here and FOX should lose.

 

It's probably worth a legal "battle" though just to clarify... because there have been some services trying to sell something similar to what Aereo was doing...  Where Aereo was renting an antenna... there were services renting Sling service to people.  FOX might be well served to get the legalese clarified so that personal use of Sling is fine and acceptable, but Sling to your neighbor is not or renting your Sling/streaming to someone else is not, etc.


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#6 OFFLINE   CincySaint

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Posted 27 June 2014 - 08:54 PM

I wonder if Fox's real target is the retransmission of prime time shows.    That is more analogous to the Aereo decision.  And the Hopper DVR just feels like a newer VCR which is already declared legal.



#7 OFFLINE   James Long

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Posted 28 June 2014 - 02:02 AM

Fox already has a lawsuit pending against the Hopper and DISH streaming. From the article above:

Dish "streams Fox's programming to Dish subscribers over the Internet—albeit also in violation of an express contractual prohibition". Fox is claiming that their carriage contract with DISH does NOT include streaming. DISH claims that they are not streaming Fox content, that their customers are streaming the content.

The SCOTUS decision does not help Fox ... but I understand that regardless of what SCOTUS decided Fox would try to twist the decision to support their argument. That is their lawyer's job.

DISH has copyright permission for the delivery they are providing: Content from stations or cable channels to the customer's receiver. DISH is not providing streaming. Any streaming provided that is not from the customer's own equipment is from a source that has Fox's permission to stream.

Based on Fox's complaint they need to go after DirecTV for Genie as well as DISH, unless DirecTV has a deal that specifically allows Genie streaming.
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#8 OFFLINE   inkahauts

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Posted 28 June 2014 - 02:55 AM

And in adaption to going after DIRECTV for their genie go they need to go after the other sling type boxes that are out there. They will lose this one I hope. Its the modern day equivalent of taking a VCR tape with to a friends.

#9 OFFLINE   rajmarie

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Posted 28 June 2014 - 08:53 AM

Dish should allow subs for la carte of all Fox channels. Lets see how many.sticks with Fox. I will not for sure.

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#10 OFFLINE   phrelin

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Posted 28 June 2014 - 09:53 AM

It's just Fox's legal folks spinning. From the LA Times:

 

Breyer and the court’s majority did not see much difference.

 

“For all practical purposes,” Aereo was acting like “a traditional cable system,” he said. “The many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here,” he said.

 

If cable and satellite companies are required to pay licensing fees before transmitting copyrighted TV signals, so is Aereo, he concluded.

 

Dish pays Fox to transmit the show to me. It's clear that I can record it and watch it at my leisure wherever I want. I can't sell it to someone else.


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#11 OFFLINE   nmetro

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Posted 28 June 2014 - 10:49 AM

Unlike Aereo, DISH is not in violation of the copyright law, retransmission consent or subscribers recoding content. The courts already declared that the network recording feature, on the Hopper, is legal. The courts also declared that recoding programs, for personal use, is also legal.

 

The subscriber controls what they wan to watch, and when they want to watch it. If FOX wants to move off broadcast TV; it would not be much of a loss; except for sports. Though, the NFL and MLB may not be happy losing their OTA viewers, because their contents was moved to Fox Sports 1 and Fox Sports 2. They could move their properties to another network. Murdoch is just getting greedy and FOX doe snot have a leg to stand on.



#12 OFFLINE   James Long

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Posted 28 June 2014 - 01:07 PM

They could always start Fox Sports 3 and DISH could carry it on whatever channel Fox sacrifices to create the new channel.

The contracts with major league sports will keep sports on OTA until the contracts expire. For example, Fox and NBC have a deal to carry NASCAR through 2024 (NBC starts next year). Those contracts specify how much is on broadcast and how much is on pay services. I agree that the NFL and MLB would not want a "pay TV only" contract. But the migration to "pay TV" will likely continue. Local teams are making deals to have their own cable channel instead of being on broadcast TV. The NFL and MLB have their own cable channels. The concept of being on "pay TV" has not been rejected. But the concept of being "pay TV only" is a big step.
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#13 OFFLINE   Joe Tylman

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Posted 29 June 2014 - 01:36 AM

Fox already has a lawsuit pending against the Hopper and DISH streaming. From the article above:

Dish "streams Fox's programming to Dish subscribers over the Internet—albeit also in violation of an express contractual prohibition". Fox is claiming that their carriage contract with DISH does NOT include streaming. DISH claims that they are not streaming Fox content, that their customers are streaming the content.

The SCOTUS decision does not help Fox ... but I understand that regardless of what SCOTUS decided Fox would try to twist the decision to support their argument. That is their lawyer's job.

DISH has copyright permission for the delivery they are providing: Content from stations or cable channels to the customer's receiver. DISH is not providing streaming. Any streaming provided that is not from the customer's own equipment is from a source that has Fox's permission to stream.

Based on Fox's complaint they need to go after DirecTV for Genie as well as DISH, unless DirecTV has a deal that specifically allows Genie streaming.

 

The DISH argument is what Napster and other file sharing systems have attempted to use. Which has never worked in a court system. The court could refer back to the Napster lawsuit and state that DISH must stop the infringing content from being streamed which I would guess would be 90% of their channels if they haven't bothered to get that added in their contracts. DISH has a consistent history of shooting from the hip with how they choose to interpret what they can do. The majority of the time they "lose" in court. Now arguments can be made one way or the other about if they truly "lost" but in the end the courts side against them more often than not with other people's IP.

 

I think it's clear based on the comments that you see on the DIRECTV Genie Go posts that people which it was less restrained like that of the sling. I think it's clear that the conservative approach is to be more friendly for contract negotiations and getting permission for streaming/online access which Mike White has stated they will not sign a new contract without that ability or the clause to do so if it becomes available.


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#14 OFFLINE   tommiet

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Posted 29 June 2014 - 07:01 AM

I'm guessing in a few short years, DVR's and Sling technology will no longer be needed. Dish and most other TV service providers are moving to a virtual DVR and remote viewing. 

 

Fox may be wasting their time and just trying to get Dish to kill the skip commercials option. 


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#15 OFFLINE   Stewart Vernon

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Posted 29 June 2014 - 12:42 PM

Sling is nothing like Napster.  Not even close.  The analogy does not apply.  Napster provided a way for multiple people to illegally share files.  Sling provides a way for one authorized user to view his programming remotely.  Not similar at all.


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#16 OFFLINE   James Long

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Posted 29 June 2014 - 01:06 PM

The DISH argument is what Napster and other file sharing systems have attempted to use.


DISH Hopper and DirecTV Genie Go are not file sharing systems. The design and intent of the system is for the customer to view their own recorded content remotely - sharing is not allowed. And no, it isn't "wink wink sharing is not allowed (giggle)" like the plethora of illegal content sharing sites that offer a service and tell the user not to use the service if use is illegal. DISH and DirecTV want to sell a subscription to every household - sharing is not allowed.

 

The court could refer back to the Napster lawsuit and state that DISH must stop the infringing content from being streamed ...


One might as well tell the OTA broadcasters not to deliver content because their content might be streamed by their viewers. That is the root of the problem. If broadcasters did not transmit content it would never be streamed.

 

I think it's clear that the conservative approach is to be more friendly for contract negotiations and getting permission for streaming/online access which Mike White has stated they will not sign a new contract without that ability or the clause to do so if it becomes available.


Mr White apparently likes to impose additional unneeded rules on his customers (before selling them out to the next company). Mr White also refuses to use the Replay patents to offer commercial skipping, because his business relationships are more important than customer relationships. A situation that is completely understandable when one is operating a business that will be sold and keeping business priorities ahead of providing services to customers.
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#17 OFFLINE   Rduce

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Posted 29 June 2014 - 04:55 PM

I am so happy that the lawyers of this Nation are not in any danger of going hungry...


Edited by Rduce, 29 June 2014 - 04:56 PM.


#18 OFFLINE   acostapimps

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Posted 29 June 2014 - 06:34 PM

Dish is paying for content regardless of AH,  Fox just feels victorious against Aereo and now going(already been going I should say) against Dish

Aereo I think wasn't paying for content and was going to provide OTA over the internet.

So what's the argument about?   Ads revenue?,   Unless it specifically said in the contract that ads can't be skipped, then I don't see any justification for court battles.

 

Edit: This is about streaming and transfers, but my opinion stays the same.


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#19 OFFLINE   tonyd79

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Posted 30 June 2014 - 10:33 AM

Sling seems perfectly fine from the aspect of me seeing my own recordings, just as it is okay to make a self copy of music or video to take along with me on a mobile device. I have already paid (through my TV provider) for the product.

 

Where I still have a problem with the sling from a legal viewpoint is the blackout rules for sports. Believe me, I am no fan of those rules but I cannot resolve the conflict in my mind that arises from potentially watching out of market live. For example, via Sling, I can watch the Orioles broadcast live in Chicago while the Orioles are playing the White Sox or the Cubs. I cannot do that by any other means (EI, MLB.tv) as the Chicago based station(s) own the live rights.

 

Yes, I know that it is MY programming from MY home, but it just opens up loopholes. With a solid connection, I can have a setup in my friends home in LA and watch LA programming.

 

I understand the value of local rights but personally would rather see anyone being able to watch anything anywhere (for a price that is fair to all) but I just cannot reconcile the legal portion of the sling remote viewing versus the other mechanisms.

 

And, yes, I know that it has been ruled legal. It just makes no sense. But neither does the SCOTUS ruling today on for-profit business religious beliefs when held against other recent rulings against discrimination for religious reasons by those same entities.


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#20 OFFLINE   Diana C

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Posted 30 June 2014 - 11:32 AM

This is an interesting development, and I think it really breaks down into two different issues:

 

1) The streaming of recorded content from the customers' DVRs to various client devices.  This issue has never been adjudicated as far as I am aware.  Keep in mind that copyright law prevents anyone from doing anything with copyrighted content unless it is expressly permitted by the copyright holder or is deemed by the court to be reasonable expectations of use once the content is in the viewer's control (the so-called "fair use" exclusions).  The key point is that "fair use" only covers those processes that have been explicitly declared to be such by the courts.  Anything else, including streaming of recorded content from your DVR to your iPad is a grey area until ruled on by the courts.

 

2) Downloading of transcoded content to another device.  This is almost certainly covered by existing fair use exclusions.  This is really no different than taking a bunch of MP3 files and burning them to a CD, so I doubt there is any possible challenge to this function.

 

So, streaming (while certainly performed by many devices) may or may not be included within the existing fair use examples.  I don't recall anyone ever challenging the legality of Slingbox or Vulkano, and certainly no one has challenged DirecTV's GenieGo or TiVo's Stream (AFAIK, all except Vulkano offer both streaming and/or downloading options).  Dish and TiVo have already built their streaming products into their DVRs and I expect DirecTV wil do the same in the next iteration of the Genie DVR line.

 

The similarity to the Aereo case is that the vendor (DirecTV, Dish or TiVo) is making money by selling a device that allows the user to stream content over the internet without an additional payment to the entity that hold the copyright on that content. Fox apparently believes that they are due some additional payment for allowing this process.

 

On the content provider's side there are some valid issues.  For example, the use of streaming to avoid a cable subscription.  Many people use one of the above streaming devices to extend their cable subscription to a remote family member (such as a child away at college).  Because the same program could be watched at the home location as well as at the remote location, either simultaneously or time shifted, this COULD be construed as a public performance.  Additionally, I could use any of these product to stream, say, a football game into a region where that game is not licensed for viewing.  Technically, I could set up a half dozen DirecTV receivers and Slingboxes and use one Sunday Ticket subscription to provide viewing at two locations (if this is a commercial enterprise, like a sports bar, the money involved could be significant).  This has the virtue (as a legal argument) of defining a clear injury (the revenue from the additional subscriptions) whether or not all of the "lost" revenue would ever be actually realized.

 

On the other hand, it can be argued that "place-shifting" is really no different than "time-shifting" - which has been declared as "fair use."  Since the user can't allow multiple clients to attach to a single device, even if viewed at both the origination and destination site, the scale is so small it makes the issue of damages fairly inconsequential (but not zero).  In addition, the streaming device and the company manufacturing and or distributing it, play no part in controlling what is and is not streamed.  The devices are just passive devices that take content (for which all established fees have been paid) and sends it to the display.  Indeed, the argument can be made that streaming is just remote playback, and is no different than burning MP3s to a disc, just with the internet taking the place of the CD.

 

We know the Court concluded that Aereo was the same as a cable system headend.. The key question in extending that decision to this case will be what factor or factors influenced this conclusion.  Was it the transcoding of the content (which all of these systems do) or was it the number of viewers attached to a single facility (which is clearly different in this case)?  Or was it both, or neither?

 

I suspect that any court challenges will result in the private streaming of content to be included in "fair use," but you never know what will happen in court.

 

BTW: Does anyone not think that Fox picked Dish for this lawsuit because of the commercial auto-skipping technology in the Hopper?  They are getting nowhere attacking on that front, so they are trying a different angle.  Fox (and most other broadcasters) hate the Hopper.


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