Fox tries to put the Sling genie back in the bottle

The running battle over who has the rights to do what online with TV content took another turn this week when Fox Broadcasting asked a federal court in California for an injunction barring Dish Network from marketing and selling the Hopper with Sling DVR, also called Dish Anywhere.

Introduced at CES in January, the new DVR incorporates the Slingbox technology Dish acquired in 2007, which allows subscribers to stream live TV content to mobile devices for watching while away from home. Fox argues in its filing that Dish’s retransmission agreement with the network does not include internet streaming rights.

“Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox’s live broadcast signal over the Internet or to make copies of Fox programs to watch ‘on the go,’ because Dish does not have the right to offer these services to its subscribers in the first place,” the filing states.

The motion is part of an ongoing copyright infringement suit by Fox against Dish over AutoHop, the commercial-skipping feature on Hopper DVRs that Dish introduced last year, and Primetime Anytime, a Hopper feature that automatically records each day’s prime-time line up from the broadcast networks. Fox sought a preliminary injunction against AutoHop and Primetime Anytime as well but its request was denied by the court last November. The network has since appealed that ruling to the federal Ninth Circuit Court of Appeals, where it is still pending.

ABC, CBS and NBC have filed a separate suit over AutoHop in New York but have not yet taken action against Hopper with Sling.

The new request for an injunction is in part a bid by Fox to gain leverage in a lawsuit that was not panning out as the network no doubt had hoped. But it also may finally resolve one of the enduring mysteries of the digital age: Why have the networks or studios never sued anyone over Sling?

It’s not as if the networks have hesitated to go to court over unauthorized retransmission of their programming. At a basic technical level, Sling does the same thing Aereo does. It re-encodes and retransmits content consumers are legally entitled to receive, either because they have paid for it in the case of Sling, or because it involves free, over-the-air signals. The networks were quick to sue Aereo, and have sued Aereo knockoffs. Yet the original Slingbox was introduced in 2005 and has never drawn fire.

Even the appeals court judges hearing the Aereo cast seemed puzzled during oral argument  over why Aereo but never Sling?

Asked about it during Dish’s fourth-quarter earnings call, just weeks before Fox filed its latest motion, Dish CEO Joe Clayton said, “Let’s be honest, the Sling technology we’ve been using has been around for almost seven years. So we believe it’s a standard practice, and we don’t anticipate any conflict with the programmers when we’re up for renewals. So maybe that’s just being optimistic, but that’s how we look at it.”

Over the years I’ve asked many lawyers from both sides of the copyright/technology divide why they think Sling has never been sued and I’ve never gotten an answer beyond speculation.

In its filing, Fox seems acutely aware of that history, and the problem it may cause the network in asking for an injunction at this point.

Dish previously has suggested that Fox is not entitled to enforce its right to prevent Dish from streaming Fox programs because “Sling technology” has existed since 2005…But until Dish unveiled Dish Anywhere last month, and announced a national, multimillion-dollar marketing blitz directed at putting its new Sling-enabled Hopper in millions of homes, SLing was a niche product that Dish admits it barely marketed…As of late 2012, less than [redacted] of Dish subscribers were using Dish’s earlier (now apparently discontinued) version of a Sling-enabled DVR.

The fact that Fox did not race to court to stop a product that was not in widespread use, was not catching on, and was not being aggressively marketed does not mean that Fox now must sit helpless as Dish blankets the country with ads for its new and improved unauthorized Internet streaming service.

Dish may not have marketed Sling aggressively up to now, but a technology that has been on the market for eight years, received numerous innovation awards and been praised at high-profile events by the Consumer Electronics Association is hardly obscure. Moreover, Fox is not asking for an injunction against the latest standalone Sling players introduced in October of last year which do much the same thing.

For whatever reason, the networks have let Sling slide for a long time. Trying to get that legal genie back in the bottle now will be an uphill fight.

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Paul Sweeting

Principal Concurrent Media Strategies

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