Judge to Dish Network: your Hopper's hip, it ain't no Aereo

Ruling excludes service from TV streaming ban

A US judge has shot down a motion to ban Dish Network's Hopper TV streaming service under the Supreme Court's recent ruling that shut down streaming startup Aereo.

In a judgment made public on Wednesday, Judge Dolly Gee of the US District Court of the Central District of California found that the Hopper service was not subject to the June 2014 Supreme Court ruling that killed off Aereo on grounds of copyright violation.

Instead, Judge Gee ruled [PDF] that Dish is allowed to stream content from subscribers home set-top boxes to mobile devices and PCs because its tech is different than Aereo's.

Hopper, which is based on Sling Media's streaming technology, allows users to record or live-stream shows directly from a set-top box to their mobile devices and PCs via the internet. The set-top box option is made available to subscribers of the Dish satellite TV service.

Plaintiff Fox Broadcasting had argued that because Dish is only licensed to broadcast to its home customers and does not have an agreement to stream Fox content online via an additional "watch it now" service, the Hopper service violated copyright law – just as Aereo did when it allowed users to watch live over-the-air TV broadcasts online.

Dish, on the other hand, argued that its broadcast license with Fox allows it to stream content to the user's home receiver, at which point the Hopper set-top box (or another Sling Adapter) simply redirects that licensed content to a different device.

Judge Gee sided with Dish, ruling that Hoppper streaming does not constitute illegal re-transmission of a broadcast. In short, a cable or satellite provider can transmit licensed content to set-top boxes, and users have the right to watch that content on other devices, so long as it goes through the box.

The difference between Hopper and Aereo, the Judge found, was that Hopper does not store content at a third-party location. While Aereo put its content in storage remotely and then re-broadcast it to customers, Dish broadcasts content to the customer's Sling box, which then sends the video to devices at the same location. Because of that, the "illegal public performance" finding in the Aereo ruling could not be applied to Dish.

This ruling should help to ease fears over the legal status of Sling boxes in the wake of the Aereo ruling. Though a District Court opinion is not the final say in the appeals process, for now it seems the remote-watching devices are safe.

Not surprisingly, Dish was a big fan of Judge Gee's ruling.

"Consumers are the winners today, as the Court sided with them on the key copyright issues in this case," Dish general counsel and and executive VP R. Stanton Dodge said in a statement. "This decision has far reaching significance, because it is the first to apply the Supreme Court's opinion in Aereo to other technology."

Fox, meanwhile, expressed disappointment in Judge Gee's decision, and observed that although Dish was not found to have violated copyright law, the court ruled that it had breached its contract with Fox in several other ways.

"Just as we learned in the Aereo case, protecting our content sometimes requires persistence and patience," Fox told El Reg in an emailed statement. "This case is not, and has never been, about consumer rights or new technology. It’s always been about protecting creative works from being exploited without permission." ®

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