DISH Network Wins Multiple Victories in High-Profile "Hopper Matter"

Judge Cites Analysis Group Expert in Summary Judgment Decision

Date:February 03, 2015

Boston -- After more than two years of legal battles, a California federal judge found that Analysis Group client DISH Network's (DISH) innovative Hopper set-top box and DVR does not infringe the copyrights of Fox Broadcasting Company's (Fox) television programming. In her ruling on motions for summary judgment made by both parties, District Court Judge Dolly M. Gee cited the findings of Analysis Group affiliate John Hauser to conclude that the use of the Hopper's "PrimeTime Anytime" (PTAT) and "AutoHop" features were "fair use" under U.S. copyright law. Although Judge Gee ruled for Fox on certain contract claims, the scope of liability and damages was significantly reduced by the judge's rulings. DISH's general counsel has praised the decision as having "far reaching significance."

When DISH introduced the Hopper in 2012, Fox alleged that PTAT and AutoHop copied and streamed Fox's programming in violation of federal copyright law and DISH's contractual agreements with Fox. With the PrimeTime Anytime feature, users have the ability to easily record the primetime shows on up to each of the four broadcast networks (ABC, CBS, NBC, and Fox) and save them for up to eight days. The AutoHop feature can be enabled by users to play back certain PrimeTime Anytime recordings commercial-free. The closely watched litigation surrounding PTAT and AutoHop has been described as carrying greater significance than the 2013 U.S. Supreme Court decision in American Broadcasting Companies v. Aereo

Professor Hauser, the Kirin Professor of Marketing at MIT's Sloan School of Management, was retained to evaluate whether the PTAT and AutoHop features had changed or were likely to change viewer behavior in ways that would affect the market for the copyrighted works. The analysis of potential changes in consumer behavior as a result of an allegedly infringing technology is central to a determination of the fair use of such technologies under U.S. federal copyright law.

An Analysis Group team led by Managing Principal Rebecca Kirk Fair and Vice Presidents Rene Befurt, Stephen Fink, Greg Rafert, and Aaron Yeater supported Professor Hauser and counsel for DISH, analyzing viewer behavior from various perspectives and using a wide variety of industry and survey data. Professor Hauser also rebutted opinions and surveys offered by Fox's experts.

"In this complicated case, Professor Hauser's ability to apply rigorous scientific standards in evaluating television viewing behavior and to clearly explain his analysis hopefully helped the judge reach the finding she did," says Ms. Kirk Fair. 

Fox and DISH recently agreed to put the long-running litigation on hold, anticipating that "the negotiation later this year of a renewal of their 2010 [retransmission consent] agreement will result in resolution of this lawsuit."

About Analysis Group
Analysis Group's more than 500 professionals provide economic, financial, and business strategy consulting to leading law firms, corporations, and government agencies. The firm's 11 offices are located in Boston, Chicago, Dallas, Denver, Los Angeles, Menlo Park, New York, San Francisco, and Washington, D.C.; and internationally in Montreal and Beijing.