streaming of live television over the internet created a multitude of likely irreparable harm if those cases the reparable harm was found in the exact same record that we have here including the same senior fox executives testimony and in all of those cases the same licensed alternatives existed nonetheless each court found there was misapplying the standard second is illogical implausible clearly erroneous findings of fact so we have proof of that here because we have an unbroken line of authority on the same exact record the same witness concert in the night circuit in particular if a party exceeds the scope of a copyright license that is also deemed copyright infringement which of course historically has been enjoined and what happened here and why i think there's clearly an abuse of discretion is exactly the point your honor made so we have these other cases where there was no license at all which the courts found there was a report card from the same conduct that is on authorized streaming of broadcast television over the internet here the court made two mistakes of what the first as the court looked to the fact that there were there's a market for others to license delivery of content on the internet and concluded that necessarily any harms are qualifiable incalculable that's exactly what you pay said you cannot do it also turns the facts of the law on its head know other words the existence of a market for licensing these rights actually proves you reparable harm which is what was found in all these other cases and i mean another reason why it seems to me that  existence of life matters is that you know when you're talking about the people who are getting whatever is have you know exactly who is getting whatever is or i authorize that was true well so first point is the court sort of ignored the fact that licenses to other folks actually proves the rebel army because an unlicensed rogue distributor puts pressure on those relationships and that was recogniz the other cases are district court cases but the reasoning applies and fall to this case and that's that's the persuasiveness of them i'm not saying the fact that there's a district court cases in and of itself persuasively you have to look at what was the record what was the facts and was the legal reasoning did the court here have some logic or law these reason to depart from this on program line of authority and in fact the court did not the license game in the district court focused on your upper bowl or so isn't that a significant distinction when she set aside the merits and focused simply on the ripper bowl or standard problem she did and i think with good reason if you look at her order she walks through the terms of the license agreement with dish and knows that it's very limited and in the copyright realm they would have no right to transfer her programming over the internet unless we granted it to him there's no dispute there's no grant of any rights to transmit over the internet that is undisputed but the contract would be on that and said not only are we not granting you the right to transmit this over the internet we are especially prohibiting you but that again that's a it's a marriage styled argument in here i think the focus of the district court is the license matters in this the other factors but there is no way to put a reference to a license that prohibits this exploitation can provide any ascertainable damages you know the words  is an agreement that said you shall not do this so b there is just people about whether that's what the contract means in context that's a merits just do you want us to and my guess is a more generic question if we were but hypothetically if we were to reverse on the record all harm we would have to norah all of that and do it on another that we can't do it on the basis that this is what the contract says because that's what the contract says that is the merits and contract is quite clear there is no grant of these rights in that country that that that much is undisputed it's in the midst of discovery with a discovery cut off coming up in august and a trial in the early next year on the merits when the district court be the appropriate place because she could do technology here the injunction is further staid and here it's quite clear there is no grants of right the first produce in copyright laws or has to be a grant of rights to do so there is no there is a prohibition as well and one reason i quite leery about assigning anything american is that there's a little bit of that that that the record isn't very specific at all about the technology and at one point you're applying for a few say that you're technology and into what we're giving for free to a morning with no additional charge to the people who are struggling which is true but how do i know which is true what the district court did make a specific finding that we're dealing with two services that came into being talking about it's not it's a service so in other words we're not suing a technology here you could go to a swap meet for example somebody could be making duplicate v h s tapes out of a v c r machine and selling them clearly be an infringement if you sued that person obviously you wouldn't be suing on the v c r technology you'd be suing for the service that person is providing using that technology as tool slrn is nothing more than a technology tool it can be used for not infringing purposes or can be used for purposes just like a v c r this is a commercial service which they charge a monthly fee for if you don't pay the fee you do not get t v over the internet and they don't have a license to do that that is undisputed there's a there's a provision actually prohibits not only doing it but authorizing it so that's why i'm saying when you have this you sort of transcend every argument they can be thrown away because they can't do it themselves and they can't even authorize it und think within the license in that sense it's a very good point it's a huge problem because if your dish i mean this is what this is the irreparable harm that has been recognized in all these other cases ready how could that be irreparable harm because it would assume and for  five years you could the fox and others will will come to an agreement as to what this service is worth so it can be valued but without it in show shore now in a position  created the million tennis simply to avail themselves of a legal loophole by the cable vision case which was then shut down by the supreme orders of the fourth technologically but what the crux of the case though was this was a service where you paid a subscription fee to aereo eight bucks a month or twelve bucks a month pending on the bells and whistles and you got t v over the internet that was an authorized and the supreme court's report found the statute covers any device or process yes just as prior described the system but in the very next page it goes on to say it but it doesn't matter if it's the personal copies of the user because it's any device or process is simply the components that get zero in the ninth circuit the court said selling a product is completely different than a commercial service any commercial service does not stand in the shoes of the user and is a direct infringer that's what we have here we have a monthly service just as we did in aereo the difference is we have a license for other rights satellite t v not internet we have a license that thankfully of rental office box is that right no no it's not court was clearly erroneous enough finding a rebel army but you know here we have a license that prohibits this distribution of the internet has to sell it or port pointed out you now are implicating the first amendment right not to speak in the court isn't in effect compelling us to speak through dish to make content available through dish albeit for some payment later while compelled speech even with some payment later has always been recognized as a repertoire was the sal morning your honor is me please the court joshua rosenkranz representing dish network when you start work judge birds on went with regard to what these technologies actually were and what they are now it actually is pretty clear in the record i refer the court to the eight fifty six in which the technology expert explains that the two thousand and five swing technology which has been in the existence saying expert the district court found as a matter of fact and i'm quoting here page three of six there is no evidence that these new technologies are uniquely threatening what the district court concluded which is what was clear from the record that this technology has existed in exactly this form for now nine years there is no difference between the slingbox which yes your honor you can buy from best buy technologically and the sling features that are it issue in this case but felt when they paid the service what they mean is that you're essentially not selling your ranking and i don't understand what they mean by service your honor nor do i understand the legal relevance of using the free the service they made the same argument last time the case was here we were renting the box there was way more interaction between the between dish and the box with records to the block recording peacher this service fee for the app that dish provides you can you get this piece of hardware it's got a chip in it and it is the same exact ship that exists in the d v r now you can also at the same time you also have to download the software you have to do that with the slingbox as well there is no doubt you're providing some real value to your customers isn't that the sort of course we are your honor the value that we are providing to our customers is the retransmission that we take fox signal off of the air we much awaited in various ways we pay zero a lot of money for the right to do that and then retransmit it to the customer masters and the customers are paying for that they are not paying extra for this d v r technology and to be clear this is a d v r technology sits inside of a box that is in the complete dominion and control of the customer that is true of slingbox it's true of this new version  call it a new version it's actually not new we introduced a box with this same capability four years ago and fox issued a new complaint digital portability and sling technology  both been around for nine years and in fact the last time we negotiated a contract which was in two thousand and ten fox in dish negotiated a press release it's on page four twenty seven referring to the copyright law prohibited dish from providing a d v r that allows customers to send themselves signals over the internet that was a very good moment at which to say it and i would also add most of dishes competitors have the same technology as well and that's something each need sixty one of the record fox lets them do it time will warner comcast direct t v their d v r is are all doing the district court used for fox comes into this court acknowledging that it did not produce evidence of harm that it actually suffered not in the knowing years that this technology existed in the marketplace if it hasn't suffered any harms from the nine years that this technology existed in the marketplace then it is the district court was well within its rights and it's just it would be helpful to me he went through the harms they're actually claiming i met my understanding is that they're not really claiming because it's not a wrap of all the harm whatever incremental cost they might be able to collect for an additional license for this intern answer but they seem to me to be saying three things one is there some inherent interest that they have and controlling the ways in which there they disseminate their material  point before i go through those three individually is that the district court did not apply any categorical rules which is the legal argument that mr stone is making it went through each of them it assessed the evidence on both sides that could have written a much shorter opinion this one fact appears in the record therefore there is no reparable harm but no as to each item that mr stone refers to the district court we're going clued it typically in only one or two of the assessments of harm and only as one of several factors so to go to the to your daughter's question about the specific harm so there's this notion of harm to negotiations that if dish is doing this then either a so called n p p d s pay t v providers dishes competitors will also request it what fox ignores is that they're  there will be no impact on ad revenues that the blip for the additional use will simply not effect from these additional unrecorded eyeballs will simply not affect  ratings under nielsen it's just too small but the piece that the district court adopted was the piece that said well it doesn't matter whether nielsen is measuring these eyeballs these eyeballs are being measured the gap in one other thing that we have says about these last eyeballs is that they're actually not lost the more you watch t v the more you watch t v period if you're picking up t v on the internet you're getting hooked on a show that you would not different they're different for some of the reasons that your honour's were discussing with fox but for for basically reasons the first is unlike the defendants in those cases dish presented its own witnesses who demolished every single one of the fox's claims one by one and with a nuance and a reference to the way the marketplace works that the district court simply found more credible second in those other cases the plaintiffs pro court the moment that there was a threat and behaved at all times as if there was a threat rather than what fox did here which is not just a delay but detestably approve the fact that dish was out there with th technology either you virtually identical box four years ago saying during contract negotiations that it was not trying to block selling issuing the joint press release that we were talking about and we're now seeing the copyright theory that we hear from fox in this court today in open court in the area of case third in relatedly the courts in most of those cases found that the technology was new and was likely to have a huge and immediate impact on the marketplace in contrast wrap explained that this particular box the hopper with sling introduce quote no new capabilities to the market that's at page eight fifty and the district court was certainly entitled to find it relevant as we've been discussing that of no harm of the sort that fox referred to had materialized in the last eight years it probably is not going to happen between now in january and finally the defendants in those cases were start ups whose ability to pay was in serious doubt which is just not true dish that was all i intended to say by way of my presentation to this  reason so if this court doesn't touch a reparable harm does not find it in abuse of discretion there's no reason to go to the merits if the court reverses on a reputable form it would have to say why in other words presumably it doesn't issue  i as a matter of law but says the district court made some sort of mistake but none of the mistakes that are cited bear at all on the merits in the matter which really would be something called the district court to address in the first instance i will remind the court also there's no reason to remain and in light of anything the district court will have summary judgment motions are next month the district court will be deciding the application of aereo in these copyright primary yes no yes your honor very different from the p i standards it's just not done even at the end of a case when there is a breach of contract and then one legal point i just would like to correct which is that it is simply not true under ninth circuit law or the law of any court in this country that simply proving a breach of contract in a contract the relates to copyrighted material is itself a copyright public performance which is a copyright right the district court seems to put us at a disadvantage because we have a license agreement that doesn't grant those rights but also express the prohibits them and the court referred to that agreement to somehow self who found that these are services if you are to ninety nine i don't quite know what that means i mean is it any different if somebody went out and bought this box from best buy yes because if you go and buy it from best buy and it breaks down other words this is was recognized in the area ok so what they're doing is they are offering something to make more money from their subscribers and there are commercial services isn't the consumer going out and getting a box and then figuring out well geez now i have to figure out where  signal to go over the internet versus the broadcast signal and that's different and that if you bought a friend now there's a just a chip in the in the sleeve i just like this this you have to go to the dish website to access the dish and we're web site fails as your own declaration pointed out he then will route you through amazon servers that they are they dish or leasing and they will help you complete the connection with hopper transfers they determine how long you can make copies where you can put them currently measuring you know what about the i have my concern which is you say that there are all these other entities that are doing this that's assume they're doing it authorized but they're still doing and if nobody is measuring that there's no competitive loss because everybody who's doing it is not getting better the question is well first of all there was nobody that was doing this with projects television that's why the to support order first a certain cable channels being provided over the internet nobody has been providing broadcast television over the internet so that to specially that that's not true but but the point is the irreparable harm is that dish is doing this without you why since and we 're losing viewership because it's not measure i mean you could if you could have a whole lot of i'm saying is that if nobody is doing is being measured then there's no competitive loss of not being measured i think of that but that isn't our claim of this is this is streaming over the internet and so when you go to do that you can build in protections for example if i go in and have a consensual negotiation i can sort of take into account the fact that well he'll soon is not measuring  and they said their their record their witnesses destroyed our case the only witness cited by the district court was mr rapp an expert if you look at his declaration it's really just a compendium of articles which you can summarize as his declaration of use of journalists about the industry we're better at there's red cracker others none of which are measuring the dish anywhere or the hopper transfer service nobody is measuring it number one number two this is a business where it doesn't matter if anyone else is measuring it the only thing ever ties or is care about is nielsen and nielsen is the coin of the realm if you will in the else and it is undisputed is not measuring this is so if we go to trial and we turn around and say well there were a lot of on authorized use users were going on the internet and because they went to the internet we lose the ability to value the commercial advertising has it wasn't being measured at trial when you turn around because it's never been measured you have no way of knowing what that harm is and that's why in all these other cases that has been found to be sort of the quintessential repertoire we have no way of knowing because nobody's measuring it which commercials they didn't watch which families where they knew some i mean this this alone establishes a requirement i didn't get just talking but it's the court said well wait a second where is your evidence that dish is not doing something that you want for others to do to stop piracy and our response is and it's not specular responses we don't have an agreement with them so tomorrow fos could say everyone who distributes our programming you're going to put a new watermark in every three seconds of every programming because we think that's the best way to stop piracy and dish because they have no constraints no