Insurer off the hook for legal tab in Dish's copyright battles - Reuters

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A Dish Network receiver hangs on a house in Somerville, Massachusetts, U.S., February 21, 2017. REUTERS/Brian Snyder

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• 2nd Circuit said insurer's policy exclusion for broadcasters in IP litigation applied to Dish

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(Reuters) - Dish Network Corp is stuck with the legal bills it ran up defending its Hopper and commercial-skipping “AutoHop” features in a four-year copyright battle with networks ABC, CBS, Fox and NBC, a federal appeals court held Wednesday in a win for Ace American Insurance Co.

The 2nd U.S. Circuit Court of Appeals said Ace had no duty to defend Dish in the litigation because its policy clearly excluded coverage for copyright violations “committed by an insured whose business is ... broadcasting,” and under the “plain and ordinary meaning” of the term, broadcasting “is precisely the nature of Dish’s business.”

Dish’s legal team at Orrick, Herrington & Sutcliffe argued that regulatory and industry sources, including the Federal Communications Commission and the Federal Communications Act, do not consider it a “broadcaster” because users must buy a subscription and use special equipment to access its content.

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However, “[i]f the parties had intended ‘broadcasting’ to take on a definition assigned by the FCC or the FCA, they could have easily pointed to those sources,” Circuit Judge Denny Chin wrote, joined by Circuit Judges John Walker Jr and Pierre Leval.

Adam Stein of Cozen O'Connor, who represented Ace along with Johnathan Hacker and others at O'Melveny & Myers, praised the court for its “straightforward” opinion. Stein declined to discuss the amount that Dish was seeking, and Dish’s attorneys did not immediately respond to requests for comment.

According to Wednesday’s opinion, the four networks filed separate lawsuits against Dish in 2012.

The last of the suits settled in 2016. Although none of the settlements required Dish to pay any money, the company then sued Ace in federal court in Manhattan to recover its legal fees.

The lower court ruled for Ace in 2019, adopting the reasoning of the 10th Circuit – the only other appeals court to have considered the question. Dish said the 10th Circuit had gotten it wrong.

The 2nd Circuit, however, agreed with the 10th Circuit’s analysis and affirmed the district court’s decision.

The case is Dish Network Corp v. Ace American Insurance Co, 2nd U.S. Circuit Court of Appeals, No. 20-268.

For Dish: Eric Shumsky, Ben Aiken, Ethan Fallon, and Sarah Sloan of Orrick, Herrington & Sutcliffe; and Lee Epstein of Flaster Greenberg

For Ace: Jonathan Hacker and Brad Garcia of O'Melveny & Myers; and Adam Stein and Terri Sutton of Cozen O’Connor

Read more:

U.S. satellite TV firm Dish ties up with Cisco to sell 5G to businesses

Fox loses U.S. copyright claims over Dish ad-skipper

Dish loses bid to keep all of TV ad case in NYC

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