Fox appealed, but the Ninth Circuit Court of Appeals sided with Dish on Wednesday, saying that Fox had failed to show it is likely to win the case. The underlying lawsuit can continue in the district court.
"We are disappointed in the court’s ruling, even though the bar to secure a preliminary injunction is very high," Fox said in a statement. "This is not about consumer choice or advances in technology. It is about a company devising an unlicensed, unauthorized service that clearly infringes our copyrights and violates our contract. We will review all of our options and proceed accordingly."
But Sherwin Siy, vice president of legal affairs for consumer advocacy group Public Knowledge, said the ruling is a win for viewers and is based on long-standing legal principles.
"Recording TV to time-shift it isn't copyright infringement; it's a fair use," Siy said in a statement. "Skipping commercials isn't even copying anything; so that's not copyright infringement either."
Broadcasters earn revenue through two sources — advertising and re-transmission fees from cable providers to carry their content.
But both revenue streams are currently threatened by new technologies. Ad-skipping services could undermine the value of advertising, while Aereo, an Internet start-up that streams local TV without paying for it, threatens broadcasters' re-transmission fees.
Broadcasters are battling both technologies in federal court.