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Fox Broadcasting Co. v. Dish Network LLC

United States District Court, C.D. California

January 12, 2015

FOX BROADCASTING COMPANY, et al., Plaintiffs,
v.
DISH NETWORK LLC, et al., Defendants

For Fox Broadcasting Company, Twentieth Century Fox Film Corporation, Fox Television Holdings Inc, Plaintiffs: Amy M Gallegos, Andrew Jackson Thomas, David R Singer, Richard Lee Stone, Jenner and Block LLP, Los Angeles, CA, USA.

For Netflix, Inc., Amazon.Com Inc., Movants: Bobbie J Wilson, LEAD ATTORNEY, Anahit Samarjian, Perkins Coie LLP, San Francisco, CA, USA; Brian Patrick Hennessy, LEAD ATTORNEY, Perkins Coie LLP, Palo Alto, CA, USA.

For Dish Network Llc, Defendant: Jeremiah J Burke, LEAD ATTORNEY, Susan K Jamison, Coblentz Patch Duffy and Bass LLP, San Francisco, CA, USA; Annette L Hurst, Orrick Herrington and Sutcliffe LLP, San Francisco, CA, USA; E Joshua Rosenkranz, Elyse D Echtman, Lisa T Simpson, Peter A Bicks, PRO HAC VICE, Orrick Herrington and Sutcliffe LLP, New York, NY, USA; Mark Alan Lemley, Michael H Page, Durie Tangri LLP, San Francisco, CA, USA; William A Molinski, Orrick Herrington and Sutcliffe LLP, Los Angeles, CA, USA.

For Dish Network Corporation, Defendant: Annette L Hurst, Orrick Herrington and Sutcliffe LLP, San Francisco, CA, USA; E Joshua Rosenkranz, PRO HAC VICE, Orrick Herrington and Sutcliffe LLP, New York, NY, USA; Elyse D Echtman, Lisa T Simpson, Peter A Bicks, PRO HAC VICE, Orrick Herrington and Sutcliffe LLP, New York, NY, USA; Mark Alan Lemley, Michael H Page, Durie Tangri LLP, San Francisco, CA, USA; William A Molinski, Orrick Herrington and Sutcliffe LLP, Los Angeles, CA, USA.

For Echostar Technologies Llc, Defendant: Annette L Hurst, LEAD ATTORNEY, Orrick, Herrington & Sutcliffe, LLP, San Francisco, CA, USA; William A Molinski, LEAD ATTORNEY, Orrick Herrington and Sutcliffe LLP, Los Angeles, CA, USA; E Joshua Rosenkranz, Elyse D Echtman, Lisa T Simpson, Peter A Bicks, PRO HAC VICE, Orrick Herrington and Sutcliffe LLP, New York, NY, USA; Mark Alan Lemley, Michael H Page, Durie Tangri LLP, San Francisco, CA, USA.

For Nbcuniversal Media, Llc, Objector: Jean P Nogues, Patricia H Benson, Robert H Rotstein, LEAD ATTORNEYS, Mitchell Silberberg and Knupp LLP, Los Angeles, CA, USA.

For Abc, Inc., American Broadcasting Companies, Inc., Objectors: Michael M Kowsari, Stephen Gerard Larson, Arent Fox LLP, Los Angeles, CA, USA.

ORDER RE: PLAINTIFF FOX BROADCASTING COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT DISH NETWORK LLC'S MOTION FOR SUMMARY JUDGMENT

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on the parties' motions for summary judgment. The parties appeared for a hearing on their motions on October 17, 2014. The Court has duly considered the parties' written submissions presented in support of and in opposition to the motions, as well as oral argument. For the reasons discussed below, Plaintiffs' motion for partial summary judgment is GRANTED in part and DENIED in part and Defendants' motion for summary judgment is GRANTED in part and DENIED in part.

I.

PROCEDURAL BACKGROUND

On May 24, 2012, Plaintiffs Fox Broadcasting Company, Inc., Twentieth Century Fox Film Corp., and Fox Television Holdings, Inc. (" Fox") filed a Complaint against Defendants DISH Network LLC, DISH Network Corporation, and EchoStar Technologies LLC (" DISH") alleging copyright infringement and breach of contract. [Doc. # 1.] Specifically, Fox alleged that DISH's PrimeTime Anytime (" PTAT") service and the AutoHop Sling Adapter feature copied and streamed Fox's programming over the Internet in violation of copyright law and DISH's contractual agreements with Fox. [Doc. # 1 at 3-4.]

On August 22, 2012, Fox filed a Motion for a Preliminary Injunction requesting that the Court enjoin DISH from offering, operating, distributing, or selling both the original and current iterations of PTAT and AutoHop. [Doc. # 41.] On November 7, 2012, this Court denied the motion. [Doc. # 109.] Fox appealed the ruling to the Ninth Circuit Court of Appeals. [Doc. # 110.] On February 21, 2013, Fox filed a First Amended Complaint (" FAC") adding DISH's new 2013 services (DISH Anywhere with Sling technology and Hopper Transfers) to the list of offending services. [Doc. # 135.] On February 22, 2013, Fox filed another Motion for Preliminary Injunction seeking to enjoin DISH from offering those additional services. [Doc. # 129.] On September 23, 2013, this Court also denied that motion. [Doc. # 196.] Fox again appealed the decision to the Ninth Circuit. [Doc. # 205.] The Ninth Circuit affirmed both of the District Court's decisions. [Doc. ## 218, 356.]

On August 22, 2014, Fox moved for partial summary judgment on its claims that DISH (1) is infringing Fox's exclusive right to publicly perform its copyright works by streaming them over the Internet using DISH Anywhere; (2) is breaching the 2010 Letter Agreement by retransmitting Fox's programming over the Internet using DISH Anywhere; (3) is breaching the parties' 2002 Retransmission Consent Agreement (" 2002 RTC Agreement") by distributing Fox's programming on a " video-on-demand or similar basis" using PTAT; (4) is breaching the parties' 2002 RTC Agreement by authorizing DISH's subscribers to copy Fox's programming for viewing outside their homes with its Hopper Transfers service; (5) breached the 2002 RTC Agreement by making copies of Fox's programming in connection with the operation of the AutoHop service; and (6) infringed Fox's exclusive right to reproduce its copyrighted works by making copies of Fox's programming in connection with the operation of the AutoHop service. [Doc. ## 383, 439, 479.] DISH moves for summary judgment on all of Fox's copyright and contract claims. [Doc. ## 372, 373, 495.]

II.

FACTUAL BACKGROUND[1]

A. The Parties and Affiliates

Fox is one of the four major commercial networks that broadcast television over the airwaves in the United States. Declaration of Michael Biard in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment (" Biard Opp. Decl.") at ¶ 4. [Doc. # 535.] In addition to broadcasting the Fox programs over the airwaves, Fox enters into retransmission consent (" RTC") agreements with various cable television systems, satellite television services, and other multichannel video programming distributors (" MVPDs") such as DISH, which retransmit Fox's broadcast signal and the Fox programs to their subscribers. Declaration of Sherry Brennan in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment (" Brennan Decl.") at ¶ 11. [Doc. # 537.] Fox separately licenses to cable, satellite, and other MVPD service providers the right to air video-on-demand (" VOD"). Id. at ¶ 17(a). Fox also enters into agreements with companies like Hulu, Netflix, Amazon, and Apple to offer the right to stream Fox programming to subscribers over the Internet on their computers and mobile devices, with or without commercials, depending on the nature of the licensing agreement and the user's subscription. Id. at ¶ 17(b)-(g). Fox also licenses older seasons of its programming to subscription VOD services such as Netflix and Amazon Prime. Defendants' Reply to Plaintiffs' Statement of Additional Facts (" DISH Reply SAMF") at ¶ 25. [Doc. # 522].

Fox holds the copyright for many of the programs broadcast on the Fox Network, including American Dad, Bob's Burgers, Family Guy, Glee, King of the Hill, New Girl, The Simpsons, and Sleepy Hollow, among others.[2] Defendants' Statement of Genuine Disputes and Undisputed Facts in Support of Opposition to Plaintiffs' Partial Motion for Summary Judgment (" DISH GDMF") at ¶ 1 [Doc. # 456.]; Declaration of Mary McGuire in Support of Plaintiffs' Motion for Partial Summary Judgment at ¶ ¶ 2, 7-8, Ex. A. [Doc. # 387.]

The majority of Fox's revenues come from advertising sales. DISH Reply SAMF at ¶ 27. To maintain ratings and launch new programs, Fox engages in substantial self-promotion and advertising for its own programs. Id. at ¶ 36. Over the past fiscal year, 14% of the total commercial spots that appeared during Fox Network programming were Fox Network's own advertisements. Id. at ¶ ¶ 40-41. Fox itself is, in fact, the single largest advertiser on the Fox network. Id. Fox owns the copyrights for the clips from Fox programs used in these promotional advertisements. Id. at ¶ 39; Declaration of Mary McGuire in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment at ¶ ¶ 8-9. [Doc. # 437-1.]

DISH is the nation's third-largest pay television provider, delivering satellite services to millions of households nationwide. Defendants' Reply to Plaintiffs' Statement of Genuine Disputes of Material Fact in Support of Motion for Summary Judgment (" DISH Reply GDMF") at ¶ 120. [Doc. # 521]. DISH is currently a party to RTC Agreements with each of the four major broadcast television networks, including Fox, which allows it to retransmit the content shown on the local affiliate stations that are owned and operated by those networks. Declaration of David Shull in Support of Defendants' Motion for Summary Judgment (" Shull Decl.") at ¶ 10. [Doc. # 499.] DISH pays [TEXT REDACTED BY THE COURT] of dollars each year for those rights. Id. DISH has offered its subscribers Digital Video Recording (" DVR") since May of 1999. Declaration of Dan Minnick in Support of Defendants' Motion for Summary Judgment (" Minnick Decl.") at ¶ 5. [Doc. # 501.]

EchoStar Technologies LLC (" EchoStar") is a technology vendor closely affiliated with DISH that, among other things, supplies DISH with satellite television and retransmission services, the set-top boxes (" STBs") and DVRs that DISH sells and leases to its customers, and technology support service. Minnick Decl. at ¶ 1. EchoStar is not the same entity as EchoStar Satellite Corporation, DISH's predecessor. See n. 3, infra . DISH has a " SlingService Services Agreement" with Sling Media, Inc., which is owned by EchoStar. DISH GDMF at ¶ 34.

B. The Agreements

Under Fox and DISH's agreements, DISH has the right to retransmit Fox programming to its subscribers via satellite. DISH Reply GDMF at ¶ 129. DISH's right to broadcast Fox programming by satellite is governed by an RTC Agreement entered into by the parties[3] on July 1, 2002 (the " 2002 RTC Agreement") that has subsequently been amended and extended numerous times (in 2004, 2005, 2006, 2007, 2009, and 2010). Shull Decl, Ex. 1 [Doc. # 499-1]; Biard Opp. Decl. ¶ 11, Ex. 15.

1. The 2002 RTC Agreement

The relevant provisions of the 2002 RTC Agreement are:

2. Retransmission Consent. . . . [TEXT REDACTED BY THE COURT]
3(d). Carriage of Stations . . . [DISH] acknowledges that it shall have no right to distribute all or any portion of the programming contained in any Analog signal on an interactive, time-delayed, video-on-demand or similar basis; provided that Fox acknowledges that the foregoing shall not restrict [DISH's] practice of connecting its Subscribers' video replay equipment.
9(a). Copyright and Trademark Licenses . . . " [DISH] shall not, for pay or otherwise, record, copy, duplicate and/or authorize the recording, copying, duplication (other than by consumers for private home use) or retransmission of any portion of any Station's Analog Signal without prior written permission of the Station, except as is specifically permitted by this Agreement."

2. The 2004 Agreement

On October 1, 2004, the parties entered into another agreement (the " 2004 Agreement"). Shull Decl. ¶ 17, Exh. 2. The relevant provision of that Agreement is:

29. Limitation of Liability . . . [TEXT REDACTED BY THE COURT]

3. The 2010 Letter Agreement

The 2002 RTC Agreement was amended most recently in a Letter Agreement in 2010 (the " 2010 Letter Agreement"). Dish Reply GDMF at ¶ 141; Shull Decl., Ex. 3. The relevant provisions of the 2010 Letter Agreement are as follows:

Other Technologies. [TEXT REDACTED BY THE COURT]
* * *
3 a). FOX Video ON Demand (SD and HD) . . . [TEXT REDACTED BY THE COURT]
* * *
4. DISH will disable fast forward functionality during all advertisements; [Fox] and DISH may include a pre-roll announcement prior to each show regarding the fast-forward disabling. DISH and [Fox] will discuss in good faith the timing of DISH's implementation of such fast-forward disabling and messaging to consumers; provided that DISH acknowledges and agrees that such fast-forward disabling is a necessary condition to distribution of the Fox broadcast content via VOD.[4]
* * *
5. At no time during the Term may any of the Fox Parties or DISH take any action whatsoever intended to frustrate or circumvent, or attempt to frustrate or circumvent, the protections granted to the other Party pursuant to any provision in this Letter Agreement.

The 2010 Letter Agreement contains a merger clause stating that the Letter Agreement " constitutes the entire understanding between the Parties concerning the subject matter of this Letter Agreement." 2010 Letter Agreement at ¶ 13. It also states that " this Letter Agreement sets forth the complete understanding among the Parties with respect to Retransmission Consent and DISH's distribution of the Services" and that " [t]his Letter Agreement will not operate as a modification, limitation or waiver of any provision of the Continuing Agreements." Id. at ¶ ¶ 10-11.

4. Choice of Law

All of the agreements at issue have choice-of-law provisions. The 2002 RTC Agreement states that " [t]his Agreement shall be governed by and construed under and in accordance with the laws of that State of Colorado." 2002 RTC Agreement at ¶ 18. The 2004 Agreement states that " [t]his Agreement shall be governed by and construed in accordance with the laws of the State of New York." 2004 Agreement at ¶ 30. The 2010 Letter Agreement incorporates the New York choice-of-law provision of the 2004 Agreement. 2010 Letter Agreement at ¶ 11.

Although the 2002 RTC Agreement states that Colorado law shall apply--and no choice-of-law principle contravenes that express designation--both sides have briefed the issues at all stages of the proceedings on the assumption that New York law applies to each of the agreements. Because Colorado law is substantively different from New York law, particularly with respect to the types of damages available for a breach of contract, it would be prejudicial to the parties to apply Colorado law without any briefing on Colorado law. The Court therefore applies New York law to construe the 2002 RTC Agreement because, through their course of conduct, the parties appear to have waived the provision of the 2002 RTC Agreement that specifies that Colorado law shall apply. See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1267 (9th Cir. 2006) (California law applied in spite of a Massachusetts choice-of-law clause provision because " the parties through their course of conduct have waived the provision of the agreement that specifies the application of Massachusetts law.").

C. The Challenged Products and Features

1. The Hopper and the Hopper with Sling

In January of 2012, DISH announced the Hopper " Whole Home" High Definition DVR to its subscribers. Minnick Decl. at ¶ 12. One year later, in January of 2013, DISH debuted the " Hopper with Sling, " which is DISH's next-generation Hopper. Minnick Decl. at ¶ 13; Fox GDMF at ¶ 76. The new Hopper includes a faster processor, built-in wireless capability, built-in Sling functionality, PTAT with AutoHop, and Hopper Transfers. Fox GDMF at ¶ 78. Sling and Hopper Transfers were new features first introduced at that time. Declaration of David Kummer In Support of Defendants' Motion for Summary Judgment (" Kummer Decl.") at ¶ 14. [Doc. # 500.]

2. Sling Technology

DISH offers various products, including the " Hopper with Sling, " that make use of " Sling" technology. DISH Reply GDMF at ¶ 157; Kummer Decl. at ¶ 5. Sling technology allows consumers to view television content from their home STBs over the Internet by use of a device that communicates using Internet protocols, such as a laptop, tablet, or smartphone. DISH Reply GDMF at ¶ 85.

Sling technology involves the use of both hardware and software. DISH Reply GDMF at ¶ 86. The Sling hardware is a computer chip that rapidly " transcodes" small packets of audiovisual data from either the live satellite signal coming off of the Hopper tuner or from a pre-existing Hopper DVR recording. Id. at ¶ 87. Using the Sling hardware together with the Sling software loaded on a tablet, smartphone, laptop, or personal computer, the subscriber can send the television content to herself to watch in another location. Id. at ¶ 85. Sling can only be used by a subscriber to gain access to her own home STB/DVR and the content on that box, either live or recorded. DISH Reply Fox GDMF at ¶ 90. The programming content to which DISH subscribers have access using Sling is that which they have already received via their DISH subscription. Id. at ¶ 105.

DISH has a " SlingService Services Agreement" with Sling Media, Inc., which is owned by EchoStar. DISH Reply SAMF at ¶ 141. [TEXT REDACTED BY THE COURT] Id. at ¶ 143. [TEXT REDACTED BY THE COURT] Id. at ¶ 146. [TEXT REDACTED BY THE COURT] Id. at ¶ 147. [TEXT REDACTED BY THE COURT] Id. at ¶ 148.

It is undisputed that the Sling process or architecture that enables DISH subscribers to watch live TV on DISH Anywhere requires the operation of various servers and equipment located outside the home. Id. at ¶ 149. The parties dispute whether, when a subscriber requests television content using DISH Anywhere, the programming travels entirely " point-to-point" over the Internet or home WiFi from the subscriber's STB to her Internet-connected device without any assistance from DISH's, EchoStar's, or Sling Media's external equipment and technicians, or whether that external equipment and those technicians are necessary for DISH Anywhere to function. See DISH Reply GDMF at ¶ ¶ 88-89, 91-92; DISH GDMF at ¶ ¶ 35-55. For example, in his August 15, 2014 Deposition, David Kummer, EchoStar's Chief Technology Officer and Rule 30(b)(6) witness, agreed that [TEXT REDACTED BY THE COURT] Declaration of Amy M. Gallegos in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment (" Gallegos Opp. Decl."), Ex. 28, Transcript of August 15, 2014 Deposition of David Kummer (" Kummer Tr.") at 49:24-50:2. [536-1.] [TEXT REDACTED BY THE COURT] Kummer also stated that [TEXT REDACTED BY THE COURT] Id. at 114:17-22. In his [TEXT REDACTED BY THE COURT] October 17, 2014 Declaration, however, Kummer stated that [TEXT REDACTED BY THE COURT] Kummer Decl. at ¶ 30. He also stated that, " [t]he audio/video content on the STB travels point-to-point from the source to the consumer's Internet-connected device using standard TCP/IP and UDP/IP communication point-to-point protocol, through whichever Internet service provider (or providers) the consumer is using in each location." Id. at ¶ 28. " Directions from the customer for channel changes and fast-forward or rewind functionality also travel point-to-point, without any interaction from Sling." Id. [TEXT REDACTED BY THE COURT] Id.

It is undisputed that [TEXT REDACTED BY THE COURT][5] DISH Reply GDMF at ¶ 93; Kummer Decl. at ¶ ¶ 26, 28-29 [TEXT REDACTED BY THE COURT]

3. DISH Anywhere

DISH Anywhere refers to Sling technology that enables subscribers who have either a Hopper with Sling or a Sling Adapter to access live and recorded programming from their STBs remotely on computers and mobile devices. DISH Reply SAMF at ¶ ¶ 121, 133; Fox GDMF at ¶ 85; Shull Decl. at ¶ 32. In its quick-start features guide for the Hopper with Sling, DISH states that " [o]nly Dish Anywhere lets you access all of your live TV channels . . . while on the go via your Internet-connected smartphone, computer, or tablet." DISH Reply SAMF at ¶ 121.

To use DISH Anywhere, a subscriber must either log in to DISHAnywhere.com on a personal computer and download a browser extension called SlingPlayer or download the free DISH Anywhere app for a tablet or smartphone. DISH Reply SAMF at ¶ 135. The subscriber may then send herself live or recorded television on her computer or mobile device. Id. at ¶ 135. When a DISH subscriber logs into the DISH Anywhere website and clicks " Live TV, " she will see a progress bar that shows the process of sending the video to the transcoder, starting to transcode, sending the information to the client, buffering it, and then starting to display it to the end user. Id. at ¶ 133.

A subscriber need only create an online ID and download the SlingPlayer once. Id. at ¶ 137. A subscriber who is not in good standing with DISH because she has not paid her bill (or multiple bills) cannot use the Hopper with Sling to activate DISH Anywhere. DISH GDMF at ¶ 20.

DISH subscribers can stream certain live programming (as opposed to viewing via a Sling-enabled STB, as described above) of certain cable television networks--but not Fox programming--on the DISHAnywhere.com website under the " Shows" tab. DISH GDMF at ¶ 198; DISH Reply SAMF at ¶ 140. The networks available for live streaming include USA, MSNBC and others, but not Fox. Id. at ¶ 139. This programming stream does originate from centralized servers, but does not involve Sling technology or require a Sling-enabled STB. Kummer Opp. Decl. at ¶ 24.

4. Hopper Transfers

The Hopper with Sling incorporates a feature originally called Hopper Transfers, now incorporated within the DISH Anywhere mobile application (" app"). Declaration of Paul Horowitz in Support of Defendants' Motion for Summary Judgment (" Horowitz Decl.") at ¶ 122. [Doc. # 504.] Hopper Transfers is a feature that allows DISH subscribers, using the DISH Anywhere app, to copy recordings that are saved on their Hopper DVRs to their mobile devices and play them back at any location, even if the mobile device is not connected to the Internet. DISH Reply GDMF at ¶ 107. Copies on the mobile device will not play if the device has not contacted the DISH Anywhere site for 30 days. Id. at ¶ 111. [TEXT REDACTED BY THE COURT] DISH Reply SAMF at ¶ 315. There are some types of DVR recordings that can only be transferred once ( i.e., HBO content), after which the original recording will be deleted from the Hopper. Id. at ¶ 313.

5. PTAT with AutoHop

a. PTAT

The Hopper with PTAT was first announced on January 9, 2012, and first became available to subscribers on March 15, 2012. FOX GDMF at ¶ 6. A subscriber may use PTAT to set a single timer on the Hopper to record all of the primetime programming shown on any or all of the four major broadcast networks any or all nights of the week. DISH Reply GDMF at ¶ 13; [6] Minnick Decl. at ¶ 24.

The PTAT recordings are made in approximately three-hour blocks, depending on the night, and not on a show-by-show basis. DISH Reply GDMF at ¶ 20.[7] If a primetime show is preempted by local breaking news or a Presidential address, the Hopper will record exactly what is aired during primetime in that local television market. DISH Reply GDMF at ¶ 22.

Recordings made with the PTAT feature will be saved for up to eight days and will be deleted after that time, unless the subscriber decides to save the PTAT recording for a longer period of time in her " My Recordings" folder. DISH GDMF at ¶ ¶ 63-64; DISH Reply GDMF at ¶ 14. The PTAT recording settings cannot be changed while the recordings are in progress, or fifteen minutes before the PTAT recordings are scheduled to begin. DISH Reply SAMF at ¶ 203.

b. AutoHop

The AutoHop feature of PTAT was announced and first provided to DISH subscribers on May 10, 2012. Fox GDMF at ¶ 46. Using AutoHop, users can choose to automatically skip commercials while playing back certain recorded shows. Id. at ¶ 65.

AutoHop works when an announcement file is sent from DISH to the user's STB with a timestamp for the end of each program segment and the beginning of the next. DISH Reply GDMF at ¶ 65.

If AutoHop is available for a recorded program, an " Enable AutoHop" pop-up screen appears that states, " You can automatically hop over this event's commercial breaks. Would you like to enable AutoHop for this event?" Fox GDMF at ¶ 49. If the user clicks " yes, " she can watch the recorded show without the commercials. Id. at ¶ 51. At the end of each segment of a show, when a viewer would ordinarily see a commercial break, the recording will automatically skip ahead to the beginning of the next show segment. Id. The commercials are not removed from the recordings viewed with AutoHop, and the recorded files are not altered in any way. Id. at ¶ ¶ 53-54.[8]

c. The Quality Assurance Copies

Until November 14, 2012, [9] EchoStar employees performed Quality Assurance (" QA") testing on DISH's AutoHop feature before delivering the announcement files to the DISH subscribers' Hoppers to manually confirm the time-stamps in the announcement files. Fox GDMF at ¶ 66; DISH GDMF at ¶ 152; Declaration of Steven M. Casagrande in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment (" Casagrande Opp. Decl.") at ¶ ¶ 34-35. [Doc. # 457.] EchoStar began testing AutoHop with primetime programming in December of 2008, and by March 17, 2011, EchoStar was testing AutoHop on all primetime events on the four major networks, including Fox. DISH GDMF at ¶ ¶ 146-47.

The QA Hopper DVRs recorded the full primetime schedule on each major network, including Fox. Minnick Decl. at ¶ 87. The QA copies were used to mark the start and stop time of the show's segments, in order to allow users to skip commercials, and to quality-test the functionality of AutoHop. Id. The copies were used exclusively for testing the AutoHop announcement files and never distributed to any customer. Fox GDMF at ¶ 68.[10]

D. The Market for Fox's Programming[11]

Fox has licensed the right to livestream Fox Network programming over the Internet to certain other MVPDs, including [TEXT REDACTED BY THE COURT] DISH Reply SAMF at ¶ 436. Brennan Decl. at ¶ 16; Declaration of Benjamin (B.J.) Elias in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment (" Elias Opp. Decl.") at ¶ 13. [Doc. # 437-18]. There is a genuine dispute as to[12] See DISH Reply SAMF at ¶ 436. [TEXT REDACTED BY THE COURT]

Fox also licenses third parties (such as Apple, Amazon, Vudu, and Microsoft) the right to distribute its programs in a commercial-free, downloadable format, which is typically available the day after a program airs on television and viewable on mobile devices, personal computers, or certain Internet-connected TVs. DISH Reply SAMF at ¶ 23.[13] Fox makes its programs available for free, with commercials, eight days after they air, on approved Internet-streaming websites such as fox.com and hulu.com. Id. at ¶ 24. Viewing is limited to personal computers and the fast forward functionality is disabled during commercials. Id. Fox sells advertising for online VOD services where consumers are able to watch a library of previously-aired Fox Programs over the Internet or on mobile devices. Id. at ¶ 25.

III.

LEGAL STANDARD

Summary judgment should be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine " if ...


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