- Act Now
- Open Internet
- Promoting Creativity
- Open & Accessible Technology
A PDF of this amicus brief is available here.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
FOX BROADCASTING COMPANY, INC., TWENTIETH CENTURY FOX FILM CORP., and FOX TELEVISION HOLDINGS, INC.,
DISH NETWORK, L.L.C. and DISH NETWORK CORP.,
Case No. CV12-04529-DMG (SHx)
BRIEF OF AMICUS CURIAE
Dated: September 17, 2012
INTEREST OF AMICUS CURIAE
Public Knowledge (PK) files this brief to protect the fair use rights of television users, and to argue for legal principles that allow new business models to succeed, and new technologies to reach the market. PK is a non-profit public interest 501(c)(3) corporation, and its primary mission is to promote technological innovation, protect the legal rights of all users of copyrighted works, and ensure that emerging copyright and telecommunications policies serve the public interest.
Applying its years of expertise in these areas, PK frequently files amicus briefs at the district and appellate level in cases that raise novel issues at the intersection of media, copyright, and telecommunications law. See, e.g., Kirtsaeng v. John Wiley & Sons, Inc., 132 S. Ct. 1905 (2012); Costco Wholesale Corp. v. Omega S.A., 131 S. Ct. 565 (2010); Golan v. Holder, 132 S. Ct. 873 (2012); Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), cert denied CNN, Inc. v. CSC Holdings, Inc., 557 U.S. 946 (2009); MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010); Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010); American Broadcasting Companies, Inc. v. Aereo, Inc., 2012 U.S. Dist. LEXIS 96309 (S.D.N.Y. July 11, 2012); WPIX, Inc. v. ivi, Inc., 765 F. Supp. 2d 594 (S.D.N.Y. 2011); In re Cellco P’ship, 663 F. Supp. 2d 363 (S.D.N.Y. 2009); Arista Records LLC v. Lime Wire LLC, No. 06-CV-5936 GEL 2 (S.D.N.Y. Sept. 30, 2008); Elektra Enter. Group v. Barker, 551 F.Supp.2d 234 (S.D.N.Y. 2008).
Fox may have sued DISH, but its real target is the wallet of the ordinary television viewer. It wants to take away the home recording rights that all viewers enjoy, so that it can sell back to them the ability to watch programs “on demand.” It wants rights that go beyond what the Copyright Act gives it, attempting to assert control, not only over the commercial exploitation of its programs, but also over the manner in which consumers enjoy them in their homes.
To do this it puts forth several specious arguments. It attempts to erase the long-settled distinction between direct and secondary copyright infringement in an attempt to portray its anti-consumer lawsuit as a business dispute. It is no doubt inconvenient for Fox that, by accusing DISH of copyright infringement, it is accusing millions of ordinary viewers, whether or not they are DISH subscribers and whether or not they use DISH’s Hopper, of infringement as well. But contrary to its claim that DISH “attempt[s] to shift to its subscribers the responsibility” for copying programs on the Hopper, Fox Mot. at 15, it is Fox that attempts to hold viewers “responsible” for skipping commercials. Its argument—that it is unlawful for a viewer to record a program and then play it back without commercials—is not limited to DISH customers. If Fox prevails, all private, noncommercial home recording is in peril.
Fortunately, its argument fails. Fox attempts to blur the line between direct and secondary copyright infringement, positing that Fox becomes a direct infringer by selling a device that allows its users to time-shift programming. But courts have consistently held that providing a device or a service to users in this way cannot give rise to direct liability.
Fox also tries to argue that home recording is no longer a fair use, since technology has made skipping commercials too easy. But time-shifting is as lawful today as it has always been, and the legality of making a recording does not depend on the manner in which it is later viewed. Therefore, Fox’s viewers do not infringe copyright, and DISH cannot be held secondarily liable.
This Court must reject Fox’s attempt to assert rights it does not have.
I. Fox Has Not Met Its Burden to Be Granted a Preliminary Injunction.
By asking for a preliminary injunction, Fox is claiming that its potential harm is so dire, its damages so severe, that it cannot wait for a full trial. However, Fox has not shown that it merits this extraordinary relief.
Preliminary injunctions should only be issued when there is clear and unequivocal showing that the plaintiff is entitled to such relief. Winter v. National Resources Defense Council, 555 U.S. 7, 24 (2008); Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1259 (10th Cir. 2004) (quoting SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)). For an injunction to be entered, the plaintiff must prove that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of a preliminary injunction; (3) the balance of equities, or hardships, absent an injunction, tips in its favor; and (4) the injunction is in the public interest. Winter, 555 U.S. at 20; eBay v. MercExchange, 547 U.S. 388, 391 (2006); Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989, 994 (9th Cir. 2011); Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (emphasizing the importance of analyzing the public interest factor). All four of these conditions must be met, and courts must analyze each of these factors independently. See American Broadcasting Companies, Inc. v. Aereo, Inc., 2012 U.S. Dist. LEXIS 96309, **5-6, **68-69 (S.D.N.Y. July 11, 2012); Caribbean Marine, 844 F.2d at 674-78 (citing Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980)). Fox has not met this difficult burden.
Issuing a preliminary injunction is an exercise of the Court’s equitable power. That includes balancing the competing claims of injury between the parties as well as scrutinizing the public consequences of granting such relief. Winter, 555 U.S. at 24. In eBay v. MercExchange, the Supreme Court ruled that courts could not apply “general rules” to the “traditional equitable principles” that underlie the factors in granting injunctive relief. The Court criticized both the District Court for the Eastern District of Virginia and the Federal Circuit for applying overly formulaic analyses to the test, replacing analysis with maxims and categorical generalizations. 547 U.S. at 394. Notably, the Court in eBay did not indicate that any factor was to be given additional weight. It also did not indicate that the likelihood of success on the merits or balance of hardships factors were more important than the other factors, as some cases in the circuits have indicated. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (emphasizing the balance of hardships factor); Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir. 2010) (same). In fact, the Ninth Circuit has indicated that district courts must analyze all factors in a preliminary injunction proceeding, or be subject to the appeals court review for abuse of discretion. Caribbean Marine, 844 F.2d at 676-77 (“The district court . . . failed to mention the harm that the government might suffer from a preliminary injunction . . . . [T]he district court [also] failed to identify and weigh the public interests at stake in its balance of harms analysis.”) (overturning the Southern District of California’s grant of a preliminary injunction).
The Ninth Circuit has applied eBay in two recent cases. In Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011), the court applied the lessons of eBay in the context of preliminary injunctions for copyright infringement, finding that “the Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.” Google, at 980. The Google court explicitly pointed out the fact that injunctive relief “may” issue under 17 U.S.C. § 502(a), permissive language that “does not evince a congressional intent to depart from traditional equitable principles.” Id. In Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) (per curiam), the Ninth Circuit reiterated the Supreme Court’s ruling in eBay that “a plaintiff may not be granted injunctive relief until he satisfies the four-factor test.” Flexible Lifeline, 654 F.3d at 995. Flexible Lifeline also shows that eBay’s ban on categorical rules in the injunctive relief context applies equally to patent and copyright, and to both permanent and preliminary injunctions. Id. at 996. Nothing in any of these opinions suggests that traditional equitable principles are only to be applied to one or two of the various factors in deciding to issue an injunction. While Flexible Lifeline and Google both focus upon the improper application of the now-discredited presumption of irreparable harm, they apply with equal force to all the factors of the four-step analysis.
Fox has not supported its claim for preliminary injunctive relief, and has not met its burdens. This Court should deny its motion.
II. Fox is Likely to Lose on the Merits.
DISH cannot be directly liable because its users, and not it, perform the volitional act of making a copy. DISH cannot be secondarily liable because time-shifting is a fair use. Thus, Fox cannot show that it is likely to succeed on the merits.
A. DISH Cannot Become a Direct Infringer By Virtue of Its Customers’ Acts.
There can be no direct liability for copyright infringement without some volitional act. Cartoon Network, L.P. v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”); Religious Tech. Ctr. v. Netcom Online Comms. Servs., 907 F. Supp. 1361, 1368-69 (N.D. Cal. 1995). In order for a copyright to be infringed, a person must actually engage in an act that (1) creates a reproduction or publicly or otherwise performs a work, and (2) in itself, touches on one of a copyright holder’s exclusive rights. See UMG Recordings, Inc. v. Shelter Capital Partners, L.L.C., 667 F.3d 1022, 1035 (9th Cir. 2011); Cablevision, at 131 (“[V]olitional conduct is an important element of direct liability”); CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549 (4th Cir. 2004) (“While the Copyright Act does not require that the infringer know that he is infringing or that his conduct amount to a willful violation of the copyright owner’s rights, it nonetheless requires conduct by a person who causes in some meaningful way an infringement.”); Netcom, 907 F. Supp. at 1370 (“Although copyright is a strict liability statute, there should still be some element of volition or causation . . . .”). Volitional conduct that falls short of this may give rise to secondary liability, but not direct.
Fox attempts to contort the facts and the law to frame DISH as a direct copyright infringer. But ultimately it is Fox’s viewers, and not DISH, who choose to time-shift programming. DISH subscribers buy the Hopper, turn it on, and command it to record Fox’s programming. They, and not DISH, make the choice to time-shift programming and play it back commercial-free. DISH merely provides them the tools to do this and defines the contours within which its subscribers can act—activities that can give rise to, at most, secondary liability. See Sony Pictures, Inc. v. Universal Studios, Inc., 464 U.S. 417 (1984); Cablevision, 536 F.3d at 133 (“[I]n cases like Sony, the Supreme Court has strongly signaled its intent to use the doctrine of contributory infringement, not direct infringement, to ‘identify  the circumstances in which it is just to hold one individual accountable for the actions of another.’”). No matter how much support, encouragement, and advice DISH gives its users, and no matter what devices it sells them or services it provides them, DISH’s actions can never constitute direct infringement as long as Fox’s viewers, and not it, have volitional control over the making of a copy.
In the Ninth Circuit, courts have addressed the issue of “volition” in several contexts. In UMG Recordings, the court held that although Veoh created an “automated process” for storing works, in any given case this action “is initiated entirely at the volition of Veoh’s users.” 667 F.3d at 1035. DISH advertises that the Hopper works “automatically,” like Veoh’s service. But users still volitionally decide to activate the device, tell it to record, and are presented with several points of control during its operation. While the statutory context is different the reasoning is the same: Veoh, like DISH, does not directly infringe copyright when its users initiate the activity.
In Sega Enters. Ltd. v. Sabella, 1996 U.S. Dist. LEXIS 20470, **18-19 (N.D. Cal. 1996), the Northern District of California was confronted with a similar factual situation. Sabella operated a bulletin-board system (BBS) that housed copies of Sega’s copyrighted games. Even though Sabella owned and operated the BBS, and advertised and sold a video game copying machine on the BBS, the court held that she was not directly liable for copyright infringement because she did not have the requisite volition; she did not, herself, copy or directly cause a copy to be made. The same is the case with DISH. DISH does not, itself, make a copy or cause a copy to be made—it merely provides tools that allow others to do so. Like the users in Sega, Fox’s viewers are the sole volitional actors.
Similarly, the Cablevision court declined to hold a service provider liable when its users had volitional control over initiating a recording on its “remote DVR” product. Cablevision, like DISH, could not be directly liable because a Cablevision subscriber “actually presses the button to make the recording” and “supplies the necessary element of volition” for copyright infringement. Like Cablevision, DISH is merely the party that “manufactures[ or] maintains . . . the machine.” Even though Cablevision “design[ed], hous[ed], and maintain[ed] a system that exists only to produce a copy,” the court found it could be, at most, secondarily liable for its users’ actions. Cablevision, 536 F.3d at 131; see also CoStar, 373 F.3d at 549. Like Cablevision, DISH is merely supplying a device and providing ongoing support to enable its users to make fair use of content.
And again, in Disney Enters. v. Hotfile Corp., 798 F. Supp. 2d 1303 (S.D. Fla. 2011), a court was confronted with a question of direct versus secondary liability for the owner of a website that allowed users to upload and download potentially infringing content. In that case, “Hotfile control[led] its physical premises, its servers, its databases, and the software that manages the website.” Id. at 1306. But the judge was unpersuaded by arguments similar to Fox’s. Namely, “the website hotfile.com merely allows users to upload and download copyrighted material without volitional conduct from Hotfile . . . .” Id. at 1308. Like DISH, Hotfile may have provided the means for its users to make copies, but in both cases it is users who “flip the switch” to make a copy. As in Sabella and Hotfile, without DISH’s users’ actions, no copying would occur at all. It would defy reason to hold it directly liable for reproductions it does not make.
Of course, DISH does more than sell a consumer device—it is a subscription television service and it provides its customers ongoing customer and technical support to make all its products, including the Hopper, work best. Fox claims this makes DISH directly liable for copyright infringement. Fox Mot. at 12. But while copyright is a strict liability statute, Netcom, 907 F. Supp. at 1370, “to establish direct liability under §§ 501 and 106 of the [Copyright] Act, something more must be shown” than that the defendant owns the device (DISH’s facilities) used to make a copy. CoStar, 373 F.3d at 550. In CoStar, while finding that an online service could not be directly liable for copyright infringement, the court explained, “[w]hen a customer duplicates an infringing work, the owner of the copy machine is not considered a direct infringer. Similarly, an ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer.” Id. Fox has not shown any “actual infringing conduct with a nexus sufficiently close and causal” to the copies that are made. Id.
In all the cases discussed above, when users choose to use a device or service, the providers were not held directly liable. When users press a button, use a webpage, or turn on a device, they perform the volitional act of “making a copy.” In this case, without DISH users activating the service, there is no copyright infringement because there is no copy being made. The distinction between direct and secondary activity is important, and it is the law. Fox cannot wish it away, nor can it destroy the line between direct and secondary liability for appearance’s sake.
B. Fox’s Viewers Do Not Infringe Copyright When They Skip Commercials.
For DISH to be liable as a secondary infringer, there must first be a direct infringer. Perfect 10 v. Amazon, 508 F.3d 1146, 1169 (9th Cir. 2007); A&M Records v. Napster, Inc., 239 F.3d 1004, 1013 n.2 (9th Cir. 2001) (“Secondary liability for copyright infringement does not exist in the absence of direct infringement by a third party.”). While Fox takes pains to obscure this point, the necessary implication of its claim that DISH is a secondary infringer is that Fox viewers, those that record Fox programming, are direct infringers. But recording programming in the privacy of one’s home for purpose of time-shifting (regardless of whether one skips commercials) is a noninfringing fair use. Because Fox’s viewers are not liable for direct copyright infringement, DISH cannot be secondarily liable.
Fox’s argument, that to time-shift a program and watch it commercial-free constitutes infringement, is not confined to Hopper. It entails that all viewers who record programs and skip past commercials are copyright infringers, whether they use a standard DVR, a VCR, recording programs on a PC, or any other means. Fox may be constrained by Sony to acknowledge that the provider of a standard DVR does not secondarily infringe as a consequence of its users “infringements,” but this has no bearing on whether viewers directly infringe. Under Fox’s theory, millions of Americans, whether they subscribe to Comcast or Time Warner Cable, DISH or DirecTV, or whether they simply watch TV broadcast over the air, are copyright infringers each and every time they time-shift programming and skip commercials. “One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home.” Sony, 464 U.S. at 456.
1. Skipping Commercials Does Not, By Itself, Implicate Copyright.
The actual locus of Fox’s objection to Hopper is the act of skipping commercials. But though Fox may wish to control all the uses that viewers make of its works, the Copyright Act does not give it such powers. Sony, 464 U.S. at 432 (copyright “protection has never accorded the copyright owner complete control over all possible uses of his work”). Most of the ordinary uses that consumers make of works simply do not implicate copyright at all—a reader does not need permission from the author of a book to read it, and a viewer does not need a license from a studio to watch a movie. Similarly, Fox’s viewers do not need to clear with Fox the exact way they watch its programming. While Section 106 of the Copyright Act gives Fox the right to control the reproduction, public performance, and distribution of its works, Fox does not have the right to control their private consumption. A Fox viewer can watch as much or as little of Fox’s programming as she wishes, with the sound on or off, with commercials or without, on any screen. She can leave the room or change the channel during the commercials, or overlay a show with a program guide. Whether Fox approves of these uses or not is immaterial, since its approval is not necessary. As the Court described in Sony,
Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Moreover, the definition of exclusive rights in § 106 of the present Act is prefaced by the words “subject to sections 107 through 118.” Those sections describe a variety of uses of copyrighted material that “are not infringements of copyright” “notwithstanding the provisions of section 106.” The most pertinent in this case is § 107, the legislative endorsement of the doctrine of “fair use.”
Sony, 464 U.S. at 447 (citations omitted).
2. Recording a Show with the Intention of Later Viewing It Without Commercials Is a Fair Use.
Fox has tied its arguments to an action by its viewers that, though non-infringing, at least relates to copyright: recording. A Fox viewer that records a program for later viewing creates a reproduction of that program. But this is a fair use now just as it was in 1984.
To determine whether a use is fair, a court must consider “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. 107. Here, as in Sony, users’ time-shifting meets all four factors.
a) The Character of the Use Is Private and Noncommercial.
The character of the use here is the same as it was in Sony: “private, noncommercial time-shifting in the home.” Sony, 464 U.S. at 442. Since then, courts have consistently held that a use of copyrighted material that implicates a Section 106 right “for private home enjoyment must be characterized as a non-commercial, nonprofit activity,” Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F. 2d 965, 970 (9th Cir. 1992), and have described similar uses, such as space-shifting, as “paradigmatic noncommercial personal use[s].” Recording Industry Ass’n of Am. v. Diamond Multimedia Systems, Inc., 180 F. 3d 1072, 1079 (9th Cir. 1999). Thus, this factor heavily weighs in favor of Fox’s viewers (and therefore DISH).
Fox argues that “to the extent Dish subscribers follow Dish’s encouragement that PrimeTime Anytime and AutoHop be used in tandem, the PrimeTime Anytime copies are not made solely for the purpose of time-shifting. Instead, they are made for the purpose of viewing the programs later without commercials . . . .” Fox Mot. at 18. But this is wrong: time-shifting is nothing more than recording a program to watch it later. The method of consumption does not affect this, and even if it did, “viewing programs later without commercials” is likewise a private, noncommercial use. To the extent that commercial-skipping is relevant at all in this fair use analysis, it can be considered only under the fourth prong, market effects.
b) Broadcast Works Are Public in Nature.
This prong likewise favors Fox’s viewers because the works in question are made widely available, and broadcast over the air for the public to watch free of charge. “[T]ime-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge.” Sony, 464 U.S. at 449. When works are broadly disseminated to the public, users’ fair use rights are strong. Cf. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985) (finding that fair use rights are stronger for published works than for unpublished).
Because Fox is a broadcaster “and is granted the free and exclusive use of a limited and valuable part of the public domain,” Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994, 1003 (D.C. Cir. 1966), when it “accepts that franchise [it] is burdened by enforceable public obligations.” Id. As the Supreme Court has found, “to the extent time-shifting expands public access to freely broadcast television programs, it yields societal benefits.” Sony, 464 U.S. at 454. The Court quoted the court below approvingly, which held that this use “is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves.” Sony, 464 U.S. at 425 (quoting Universal City Studios, Inc. v. Sony Corp. of Am., 480 F. Supp. 429, 454 (C.D. Cal 1979)). Because Fox is a broadcaster charged with promoting the public interest, which time-shifting also promotes, this prong of the fair use analysis favors Fox’s viewers.
c) Time-Shifting Requires the Whole Work to Be Copied.
To time-shift, Fox’s viewers record programs in their entirety. The Supreme Court recognizes that “the extent of permissible copying varies with the purpose and character of the use,” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994). Here, as in Sony, the reproduction of an entire work “does not have its ordinary effect of militating against a finding of fair use,” Sony, 464 U.S. at 449-50, because time-shifting is a noncommercial use of broadcast programming that is made freely available.
Put another way, this factor considers whether a person copies more of a work than is necessary for her purpose. Harper & Row, 471 U.S. at 63-64. Because the fair use of time-shifting requires making copies of the work as a whole, this factor favors Fox’s viewers.
d) There Is No Effect on Any Likely Markets
Fox makes much of the language in Sony that suggests that if a particular use “should become widespread” and “adversely affect the potential market for the copyrighted work,” it might not be fair. Sony, 464 U.S. at 451; Fox Mot. at 19. But the Court in Sony was well aware that some users might use time-shifting to bypass commercials. Sony, 464 U.S. at 423 (“The pause button ... enabl[es] a viewer to omit a commercial advertisement from the recording... The fast-forward control enables the viewer of a previously recorded program to run the tape rapidly when a segment he or she does not desire to see is being played back on the television screen.”). The Court found time-shifting fair nonetheless. A use that is fair should it become widespread is also fair when it does become widespread, and Fox’s attempt to get rid of fair use when it becomes too convenient must fail. Fox, like the plaintiffs in Sony, cannot show that time-shifting, even with commercial-skipping, causes real harm.
Without a strong showing from Fox, the Court cannot presume that unauthorized, noncommercial reproductions cause any harm at all. Because home recording is a noncommercial activity, Fox must show through “a preponderance of the evidence that some meaningful likelihood of future harm exists” because of its viewers’ actions. Sony, 464 U.S. at 451. But the evidence presented by DISH refutes Fox’s case, showing that time-shifting benefits creators. In any case, Fox’s video-on-demand service and time-shifting are not the same thing: time-shifting allows users to watch recently-aired shows that they might not have been able to watch live. Video-on-demand services, by contrast, offer access to a comprehensive back catalog of movies, entire runs of television series, and more. By creating a false equivalence between video-on-demand and time-shifting, Fox is attempting to show harm where there is none.
Even if Fox does claim that it plans to offer some new service that emulates time-shifting and competes with DISH, it cannot show harm to a potential market for the copyrighted work. Fox may not postulate harm to a hypothetical, speculative market where it sells to consumers the right to do things they now enjoy for free. In S.A.R.L. Louis Feraud Int’l v. Viewfinder, Inc., 627 F. Supp. 2d 123, 136 (S.D.N.Y. 2008), plaintiff fashion designers alleged that press photographers interfered with a yet-undeveloped market for photographs from the designers themselves. But the court found that fashion designers “have never operated as suppliers for such a market.” Id. at 136. As in Viewfinder, while “[o]ne could imagine an alternate reality” where viewers were eager to pay new fees to Fox for the right to time-shift programming, simply postulating a “far-fetched” new market is not enough to show harm under the fourth factor of a fair use analysis. Id. These kinds of “implausible” markets are not sufficient to show harm. A.V. ex rel. Vanderhye v. iparadigms, LLC, 562 F. 3d 630, 645 (4th Cir. 2009).
Fox is attempting to “bootstrap” a market into existence, observing a fair use and proposing to charge for it. See 2 Nimmer § 13.05[A], 13-181, 182; 4 Patry on Copyright § 10:152. It cannot be permitted to undermine the Copyright Act in this way.
III. Fox Will Not Suffer Irreparable Harm When Its Viewers Record Its Programs.
Fox must show that it is likely to suffer irreparable harm without a preliminary injunction. Relevant factors include whether harm will occur to the parties’ legal interests and whether the injury can be remedied by damages or permanent injunction after a trial on the merits. Salinger v. Colting, 607 F.3d 68, 81 (2d Cir. 2010). There are no shortcuts: irreparable harm must be demonstrated, not presumed. Flexible Lifeline, 654 F.3d 989, 998 (9th Cir. 2011). Moreover, speculative injury is not sufficient. Caribbean Marine, 844 F.2d at 674 (“A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”). Further, as the Ninth Circuit has explained, Fox must show a “sufficient causal connection between irreparable harm to [plaintiff]’s business and [defendant’s behavior.]” Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011).
In short, irreparable harm requires the plaintiff to show that the court should impose a preliminary injunction because the plaintiff is about to be harmed in a way that, if allowed, cannot be repaired by any other remedy in the court’s repertoire. Salinger, 607 F.3d at 81. This is a significant burden, and Fox does not meet it. A court should not assume that harm will occur simply because the plaintiff said so. Humanscale Corp. v. CompX Int’l Inc., 2010 U.S. Dist. LEXIS 42083, *12 (E.D. Va. 2011). Nowhere does Fox assert that, between now and a final determination on the merits, it will be adversely harmed in a way that cannot be adequately remedied by damages or a permanent injunction. Instead, as DISH notes, Fox merely recounts the same tired arguments that were rejected in Sony and Cablevision.
Fox makes three claims about its supposed harm: (1) DISH’s conduct harms Fox’s right to exclusive control; (2) DISH’s conduct disrupts Fox’s ability to distribute its programs; and (3) DISH’s conduct threatens Fox’s ad-supported business model. These assertions of “irreparable harm” are unpersuasive for two reasons. First, the effects of normal marketplace competition and the evolution of technology and business models are not cognizable “harms.” The Hopper is a new technology that directly responds to viewer demand. Fox itself should innovate instead of trying to use the court to put a stop to new technology that disrupts its expectations. Second, none of these claims of irreparable harm are so dire and imminent as to justify the issuance of a preliminary injunction—in other words, these claims of harm are not irreparable. The effect on Fox’s right to control, ability to distribute, and ad-supported business model before and during trial will likely be negligible. In any case, Fox has not demonstrated that it stands to lose substantial revenue or goodwill during the pendency of trial. Instead, it relies on ethereal “loss of control” and “disruption of business model” arguments that simply obscure the fact that that it stands to suffer no real harm. Finally, financial harms (such as any purported loss of advertising revenue) are easily quantified and may not be used as a basis for a preliminary injunction.
Because Fox has not asserted with any specificity that it will likely suffer irreparable harm if a preliminary injunction is not granted, this factor favors DISH.
IV. DISH, Not Fox, Would Suffer Hardship if a Preliminary Injunction Is Granted.
The balance of hardships favors DISH. DISH’s customers would be inconvenienced if their equipment, which they have paid for and come to rely on, is remotely disabled or taken back. DISH would face a deluge of customer complaints and service requests, and would suffer a loss of consumer goodwill. Contrariwise, as argued above, even assuming that Fox eventually proves its case at trial, the harm that it would suffer between now and that time would be minimal and easily remedied. While both DISH and Fox are large companies and the outcome of this suit will not seriously affect their bottom lines, the balance of the hardships favors DISH.
V. The Public Benefits from Balanced Copyright and Technological Innovation, Not the Enforcement of a Non-Existent “Right” to Prevent Ad-Skipping
Fox argues that “upholding copyright protection is in the public interest.” Fox Motion at 25. But this case is not about whether the overall system of copyright serves the public interest—the question is whether DISH or Fox’s viewers are infringing copyright in a specific instance. Since they are not, it does not serve the public interest or the interests of copyright law for the Court to grant an injunction. Indeed, Fox upsets copyright’s balance by seeking to assert rights it does not have, and deny users their lawful rights. But even if Fox were to demonstrate a likelihood of success on the merits, this would have no bearing on whether granting its injunction would serve the public interest. Just as courts may not presume that a showing of copyright infringement demonstrates irreparable harm, Salinger, 607 F.3d at 79-80, they may not presume that a non-binding, pre-trial prima facie case for copyright infringement demonstrates that an injunction serves the public interest.
More fundamentally, Fox’s entire line of argument is misguided. The public interest and the merits of the case are separate factors, each of which Fox must independently prove to prevail on its motion. The public interest factor must be considered independently, Salinger, 607 F.3d at 79 n.8, and is not merely an opportunity for Fox to remake its arguments on the merits, damages, or the balance of hardships. Winter, 555 U.S. at 20; eBay, 547 U.S. at 391; Flexible Lifeline, 654 F.3d at 994. Conflating the public interest factor with any of the others would render it superfluous, contrary to the express command of the Supreme Court in eBay.
Fox attempts to argue that the public interest favors the advertising-supported model for television. Even were the Court to take this assertion on faith (and to assume that Fox’s business model is necessary to fund creativity), DISH has rebutted Fox’s assertion that time-shifting causes a decline in advertising revenues. Nevertheless, the public interest does not lie merely in protecting Plaintiffs’ business model, but “in the general benefits derived by the public from the labors of authors.” Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). Indeed, the Copyright Clause only grants Congress the power of “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” for one purpose: “To promote the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8. By making works more convenient to watch and thus more accessible, time-shifting promotes these general public benefits. Sony, 464 U.S. at 429 (“Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”).
Finally, the public interest would not be served by an injunction that would slow investment and choke off innovation in the video marketplace. As Michael A. Carrier has shown, the preliminary injunction granted against Napster chilled investment in music services generally and slowed the development of licensed services, leading to a “lost decade” for digital music services. If this Court is going to decide an issue that could reverberate throughout the industry, slow the evolution of digital video products, and choke off investment in an area sorely in need of fresh ideas, it should do so only after a full and fair trial, where DISH, Fox, and amici have the chance to fully make their case, and more fully develop the factual record. It does not serve the public interest for any court to issue a preliminary injunction that could have such wide-ranging consequences. See 4 Nimmer on Copyright § 14.06 (courts should consider whether “great public injury would be worked by an injunction”).
Because Fox has not met its burden, and to protect long-established home recording rights, this Court should deny the motion for a preliminary injunction.
Dated: September 17, 2012
/s/ Brad Kuenning
Epport, Richman & Robbins, LLP
1875 Century Park East, Suite 800
Los Angeles, CA 90067-2512
/s/ John Bergmayer
1818 N Street, NW Suite 410
Washington, DC 20036
Tel: (202) 861-0020
Attorneys for Amicus Curiae
CERTIFICATE OF SERVICE
I, Brad Kuenning, hereby certify that on September 17, 2012, I caused a true copy of the foregoing to be served on all parties via overnight mail.
Dated: September 17, 2012
/s/ Brad Kuenning
Epport, Richman & Robbins, LLP
1875 Century Park East, Suite 800
Los Angeles, CA 90067-2512
 Fox relies on Perfect 10, Inc. v. Megaupload, Ltd., 2011 U.S. Dist. LEXIS 81931 (S.D. Cal. July 27, 2011), where the court held that Megaupload could be liable for direct copyright infringement. But this unpublished district court opinion was a ruling on a motion to dismiss by Megaupload, and drew “all reasonable inferences in Perfect 10’s favor.” Id. at *11. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court should give it little weight.
 It has not been shown that Fox viewers can make any infringing uses of Fox’s programming with the Hopper. It is at least clear that, since the Hopper’s unique features are not infringing, it is “capable of substantial noninfringing uses.” Sony, 464 U.S. at 442.
 Even if this Court finds that DISH, and not Fox’s viewers, is volitionally responsible for creating recordings, DISH’s reproductions constitute fair uses. Fox argues that DISH “cannot assert a fair use defense that might be asserted by one of its subscribers.” Fox Mot. at 15. But, while DISH’s copying may be unauthorized, it is not unlawful. Fox cannot manufacture new liability by shifting around agency.
 Not only does Fox seek to label millions of Americans copyright infringers, it arrogates to itself the right to decide that technologies should be illegal simply because it does not like them. It argues that “all four of the major broadcast networks – 100% of those affected by PrimeTime Anytime and AutoHop – clearly object to Dish’s service and have sued Dish.” Fox Mot. at 18-19. But just as its reasoning would label all viewers who record shows and skip commercials as copyright infringers, it would outlaw an entire class of technology (regardless of who deploys it) and pretends that the interests of broadcast networks should be given more weight than the interests of users, other creators, and technological progress. See Sony, 464 U.S. at 444-45 (discussing how not all creators object to time-shifting)
 See Cyrus Farivar, Fox, NBCUniversal Sue Dish over Ad-Skipping DVR Service, Ars Technica (May 24, 2012), http://arstechnica.com/tech-policy/2012/05/fox-nbcuniversal-sue-dish-over-ad-skipping-dvr-service.
 Fox also asserts that “PrimeTime Anytime facilitates the copying of a nightly library of programs regardless of whether the user desires to watch a particular program at a later time. For programs the user has no intention of watching later, there is no time-shifting at all.” But the recordings that viewers make for later viewing are temporary. It is more accurate to say that viewers create a temporary cache of programs than a library. And it is not clear why Fox would object to copies of its programs that are made, not watched, and then disposed of—such a use is almost per se fair, or de minimis, since there is no detriment to the copyright holder.
 While later actions (such as the fact of a viewer’s skipping commercials, or the opposite) can have no bearing on whether a use which took place in the past (making a recording) was fair, the intent of the party making a use of a copyrighted work may have bearing on the first prong of the fair use of the fair use analysis. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985) (giving weight to the “intended purpose” of an act).
 Michael A. Carrier, Copyright and Innovation: The Untold Story, 2012 Wisc. L. Rev. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2099876.