Fox Broadcasting Company v. Dish Network L.l.c.; Dish Network Corporation; Echostar Technologies L.l.c.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOX BROADCASTING COMPANY;
TWENTIETH CENTURY FOX FILM
CORPORATION; FOX TELEVISION
HOLDINGS, INC.,
Plaintiffs - Appellants,
v.
DISH NETWORK L.L.C.; DISH
NETWORK CORPORATION;
ECHOSTAR TECHNOLOGIES L.L.C.,
Defendants - Appellees.
No. 13-56818
D.C. No. 2:12-cv-04529-DMG-SH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted July 7, 2014
Pasadena, California
Before: NOONAN and BERZON, Circuit Judges, and SABRAW, District Judge.**
FILED
JUL 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Dana M. Sabraw, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.

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Appellants Fox Broadcasting Company, Twentieth Century Fox Film
Corporation, and Fox Television Holdings, Inc. (“Fox”) appeal from the district
court’s order denying the motion for preliminary injunctive relief against appellees
Dish Network, L.L.C., Dish Network Corporation, and EchoStar Technologies,
L.L.C. (“Dish Network”) for alleged copyright infringement and breach of
contract. As this is a preliminary injunction appeal, we review the district court’s
decision for abuse of discretion. Fox Broadcasting Co. v. Dish Network, L.L.C.,
747 F.3d 1060, 1066 (9th Cir. 2013). Finding none, we affirm.
The district court denied Fox’s request for a preliminary injunction because
it found that Fox had not shown a likelihood that Dish Network’s “Dish
Anywhere” and “Hopper Transfers” technology would irreparably harm Fox
before final adjudication. Contrary to Fox’s arguments in this appeal, the district
court committed no legal error and made no clearly erroneous factual findings in so
ruling.
First, the district court’s irreparable harm analysis did not run afoul of eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). The district court cited Fox’s
contractual relationships with Dish Network and other distributors as support for
its conclusion that Fox failed to show that harm absent an injunction could not be
remedied with money damages. See Rent-A-Center, Inc. v. Canyon Television &
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Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). The district court did
not rely on the fact that Fox licensed its programming as a categorical bar to
establishing irreparable harm.
Second, the district court did not commit legal error by characterizing the
irreparable harm forecasts of Fox’s executive as speculative. A preliminary
injunction may issue only upon a showing that irreparable harm is likely absent
judicial intervention. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
(2008). Here, the district court found that Fox’s lack of evidence that the
complained-of technology, available for several years, had yet caused Fox’s
business any harm weighed against Fox’s argument that it would be irreparably
harmed absent a preliminary injunction. In so finding, the district court did not
hold Fox’s evidence to a more rigorous standard than our law requires and so did
not abuse its discretion.
Third, the district court’s irreparable harm ruling did not rely on clearly
erroneous findings of fact. The district court’s finding that Fox did not
demonstrate that other distributors would insist on the same rights as Dish Network
immediately, rather than wait until the outcome of this litigation, was not
“illogical, implausible, or without support in inferences that may be drawn from
the facts in the record.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2011)
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(internal quotation marks omitted). The record also supports the district court’s
conclusion that any concessions Fox makes in contractual negotiations with other
distributors that result directly from Dish Network’s contested technologies may be
monetized. Finally, the district court’s ruling that Fox’s assertion of lost
advertising revenue absent an injunction of Dish Network’s technologies was
inadequately supported by Fox’s evidence was not clear error, in light of the
evidence that advertisers are adapting to the changing landscape of television
consumption.
Accordingly, the order of the district court denying Fox’s motion for a
preliminary injunction is AFFIRMED.
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