                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 14 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FOX BROADCASTING COMPANY;                        No. 13-56818
TWENTIETH CENTURY FOX FILM
CORPORATION; FOX TELEVISION                      D.C. No. 2:12-cv-04529-DMG-SH
HOLDINGS, INC.,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

DISH NETWORK L.L.C.; DISH
NETWORK CORPORATION;
ECHOSTAR TECHNOLOGIES L.L.C.,

              Defendants - Appellees.


                    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.**



        *
             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.
      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 &


                                          2
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)


                                          3
(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.




                                           4
