UPDATE 1-Fox loses appeal over Dish 'Hopper' feature
* Fox brought copyright, breach of contract claims
* Fox sought to stop sales of commercial-skipping device
July 24 (Reuters) - A federal appeals court on Wednesday rejected Twenty-First Century Fox Inc's effort to stop Dish Network Corp from selling its "Hopper" commercial-skipping device.
The 9th U.S. Circuit Court of Appeals said a lower court judge did not abuse her discretion last November in refusing to temporarily halt sales of the Hopper and another "marsupial-inspired" companion product known as the "Joey."
U.S. District Judge Dolly Gee in Los Angeles said the parent of the Fox network failed to show that it would likely prevail on its copyright infringement and breach of contract claims, or otherwise face irreparable harm. The company had sought a preliminary injunction.
Dish's device has been controversial because of its "AutoHop" feature, which lets subscribers skip over commercials on recorded broadcast programs.
It is available on shows accessed with PrimeTime Anytime, which lets Hopper users record prime-time programs on Fox, ABC, CBS and NBC with one click and store them for eight days.
Fox has said PrimeTime Anytime violates Dish's contract over accessing programming on demand.
Along with other networks, it has also worried that AutoHop could reduce revenue from advertisers who fear that subscribers might fast-forward past their commercials.
Circuit Judge Sidney Thomas wrote for the 9th Circuit that Fox's copyright claims might fail because it is "the user, not Dish" that makes the alleged illegal copy of programs.
He said the breach of contract issue was a "much closer call" given Dish's 2010 agreement to disable fast-forwarding through commercials in "video on demand" programs, but that Gee "did not clearly err" in concluding that PrimeTime Anytime more closely resembled a DVR.
Fox spokesman Scott Grogin said the company is disappointed with the decision. "This is not about consumer choice or advances in technology," he said. "It is about a company devising an unlicensed, unauthorized service ... We will review all of our options and proceed accordingly."
The case is Fox Broadcasting Co et al v. Dish Network LLC et al, 9th U.S. Circuit Court of Appeals, No. 12-57048.