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Strong Sell
Here's the part that is going to bite TiVo in the ass... DISH was making a copy of Fox's show to "timestamp" where the commercials were. Sound familiar? C. AutoHop and the QA Copies 1. Copyright Claims “By making an unauthorized copy for which it has not paid and using it for AutoHop, Dish harms Fox’s opportunity to negotiate a value for those copies and also inhibits Fox’s ability to enter into similar licensing agreements with others in the future by making the copies less valuable.” Fox Broadcasting, 905 F. Supp. 2d at 1105. The record reflects that there is a market for the right to copy and use Fox programs, given that Fox licenses copies of its programming to third-party companies like Hulu, Netflix, and Amazon. There is no demonstrable existing market for the intermediate copies themselves, but there is no material issue of disputed fact that Fox, as a normal course of business, monetizes the right to copy its programming, whether directly (charging for the direct use of copies) or indirectly (allowing the use of copies as a part of a comprehensive licensing agreement). The fact that DISH’s use of the QA copies is sui generis and has never been attempted before by any other entity does not mean that it has no intrinsic value. See Campbell, 510 U.S. at 592 (“the market for potential derivative uses includes . . . those that creators of original works would in general develop or license others to develop”); Harper & Row Publishers, Inc., 471 U.S. at 568 (the fourth factor “must take account not only of harm to the original but also of harm to the market for derivative works”). Here is where you need to pay attention... Fox has adduced uncontroverted evidence to show that it would normally negotiate a licensing agreement or royalty payment for the right to copy Fox programming in any manner. DISH’s unauthorized use of QA copies would impair Fox’s ability to monetize that use not only as to DISH but also as to any other future technology creator that makes analogous use of such copies. Unless TiVo is paying a royalty, I think the Broadcasters will shut them down... Here is where the judge splits the baby... Inasmuch as the Court finds that AutoHop does not infringe Fox’s copyrights and the QA copies are not a fair use as a matter of law, DISH’s motion for summary judgment on the copyright infringement claim is GRANTED as to the AutoHop feature, but DENIED as to the use of the QA copies. Fox’s motion for partial summary judgment as to DISH’s liability for copyright infringement for the AutoHop feature is DENIED, but its motion as to DISH’s liability for direct infringement for using the QA copies is GRANTED.
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