Although fair use is a fact-specific doctrine, the court equated the facts of Fox v. Dish Network to Sony Corp. of America v. Universal City Studios, Inc. in order to avoid addressing both issues. This Note argues that if the Ninth Circuit had conducted a more in-depth fair use analysis, it would have found that Sony was less controlling than the court purported it to be, and that the use of Dish’s PTAT does not constitute fair use.

Part II of this Note discusses the doctrine of fair use, its application in Sony, and how the ruling of Sony has been relatively unchallenged since 1984. The discussion portrays the significance of the Fox v. Dish Network litigation and also helps the reader recognize the inadequate fair use analysis of the Ninth Circuit. Part III discusses the facts of the Fox v. Dish Network litigation. Part IV addresses the Ninth Circuit’s erroneous decision to exclude Dish’s AutoHop service from its analysis and subsequently analyzes each fair use factor individually. This part also shows how the court ignored critical factual differences between Dish’s PTAT service and Sony’s VTR and how the court consequently erred in using Sony’s fair use analysis as a crutch in its analysis. Finally, Part IV offers concluding remarks about the Fox v. Dish Network litigation.