Full opinion text
ORDER RE: PLAINTIFF FOX BROADCASTING COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT DISH NETWORK LLC’S MOTION FOR SUMMARY JUDGMENT [372, 383] [UNDER SEAL] DOLLY M. GEE, District Judge. This matter is before the Court on the parties’ motions for summary judgment. The parties appeared for a hearing on their motions on October 17, 2014. The Court has duly considered the parties’ written submissions presented in support of and in opposition to the motions, as well as oral argument. For the reasons discussed below, Plaintiffs’ motion for partial summary judgment is GRANTED in part and DENIED in part and Defendants’ motion for summary judgment is GRANTED in part and DENIED in part. I. PROCEDURAL BACKGROUND On May 24, 2012, Plaintiffs Fox Broadcasting Company, Inc., Twentieth Century Fox Film Corp., and Fox Television Holdings, Inc. (“Fox”) filed a Complaint against Defendants DISH Network LLC, DISH Network Corporation, and EchoStar Technologies LLC (“DISH”) alleging copyright infringement and breach of contract. [Doc. # 1.] Specifically, Fox alleged that DISH’s PrimeTime Anytime (“PTAT”) service and the AutoHop Sling Adapter feature copied and streamed Fox’s programming over the Internet in violation of copyright law and DISH’s contractual agreements with Fox. [Doc. # 1 at 3-4.] On August 22, 2012, Fox filed a Motion for a Preliminary Injunction requesting that the Court enjoin DISH from offering, operating, distributing, or selling both the original and current iterations of PTAT and AutoHop. [Doc. #41.] On November 7, 2012, this Court denied the motion. [Doc. # 109.] Fox appealed the ruling to the Ninth Circuit Court of Appeals. [Doc. # 110.] On February 21, 2013, Fox filed a First Amended Complaint (“FAC”) adding DISH’s new 2013 services (DISH Anywhere with Sling technology and Hopper Transfers) to the list of offending services. [Doc. # 135.] On February 22, 2013, Fox filed another Motion for Preliminary Injunction seeking to enjoin DISH from offering those additional services. [Doc. # 129.] On September 23, 2013, this Court also denied that motion. [Doc. # 196.] Fox again appealed the decision to the Ninth Circuit. [Doc. #205.] The Ninth Circuit affirmed both of the District Court’s decisions. [Doc.## 218, 356.] On August 22, 2014, Fox moved for partial summary judgment on its claims that DISH (1) is infringing Fox’s exclusive right to publicly perform its copyright works by streaming them over the Internet using DISH Anywhere; (2) is breaching the 2010 Letter Agreement by retransmitting Fox’s programming over the Internet using DISH Anywhere; (3) is breaching the parties’ 2002 Retransmission Consent Agreement (“2002 RTC Agreement”) by distributing Fox’s programming on a “video-on-demand or similar basis” using PTAT; (4) is breaching the parties’ 2002 RTC Agreement by authorizing DISH’s subscribers to copy Fox’s programming for viewing outside their homes with its Hopper Transfers service; (5) breached the 2002 RTC Agreement by making copies of Fox’s programming in connection with the operation of the AutoHop service; and (6) infringed Fox’s exclusive right to reproduce its copyrighted works by making copies of Fox’s programming in connection with the operation of the AutoHop service. [Doc. ## 883, 439, 479.] DISH moves for summary judgment on all of Fox’s copyright and contract claims. [Doc.## 372, 373, 495.] II. FACTUAL BACKGROUND A. The Parties and Affiliates Fox is one of the four major commercial networks that broadcast television over the airwaves in the United States. Declaration of Michael Biard in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Biard Opp. Deck”) at ¶ 4. [Doc. # 535.] In addition to broadcasting the Fox programs over the airwaves, Fox enters into retransmission consent (“RTC”) agreements with various cable television systems, satellite television services, and other multichannel video programming distributors (“MVPDs”) such as DISH, which retransmit Fox’s broadcast signal and the Fox programs to their subscribers. Declaration of Sherry Brennan in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Brennan Deck”) at ¶ 11. [Doc. # 537.] Fox separately licenses to cable, satellite, and other MVPD service providers the right to air video-on-demand (“VOD”). Id. at ¶ 17(a). Fox also enters into agreements with companies like Hulu, Netflix, Amazon, and Apple to offer the right to stream Fox programming to subscribers over the Internet on their computers and mobile devices, with or without commercials, depending on the nature of the licensing agreement and the user’s subscription. Id. at ¶ 17(b)-(g). Fox also licenses older seasons of its programming to subscription VOD services such as Net-flix and Amazon Prime. Defendants’ Ré-ply to Plaintiffs’ Statement of Additional Facts (“DISH Reply SAMF”) at ¶25. [Doc. # 522], Fox holds the copyright for many of the programs broadcast on the Fox Network, including American Dad, Bob’s Burgers, Family Guy, Glee, King of the Hill, New Girl, The Simpsons, and Sleepy Hollow, among others. Defendants’ Statement of Genuine Disputes and Undisputed Facts in Support of Opposition to Plaintiffs’ Partial Motion for Summary Judgment (“DISH GDMF”) at ¶ 1 [Doc. # 456.]; Declaration of Mary McGuire in Support of Plaintiffs’ Motion for Partial Summary Judgment at ¶¶ 2, 7-8, Ex. A. [Doc. # 387,] The majority of Fox’s revenues come from advertising sales. DISH Reply SAMF at ¶ 27. To maintain ratings and launch new programs, Fox engages in substantial self-promotion and advertising for its own programs. Id. at ¶ 36. Over the past fiscal year, 14% of the total commercial spots that appeared during Fox Network programming were Fox Network’s own advertisements. Id. at ¶¶ 40-41. Fox itself is, in fact, the single largest advertiser on the Fox network. Id. Fox owns the copyrights for the clips from Fox programs used in these promotional advertisements. Id. at ¶ 39; Declaration of Mary McGuire in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment at ¶¶ 8-9. [Doc. # 437-1.] DISH is the nation’s third-largest pay television provider, delivering satellite services to millions of households nationwide. Defendants’ Reply to Plaintiffs’ Statement of Genuine Disputes of Material Fact in Support of Motion for Summary Judgment (“DISH Reply GDMF”) at ¶ 120. [Doc. # 521]. DISH is currently a party to RTC Agreements with each of the four major broadcast television networks, including Fox, which allows it to retransmit the content shown on the local affiliate stations that are owned and operated by those networks. Declaration of David Shull in Support of Defendants’ Motion for Summary Judgment (“Shull Decl.”) at ¶ 10. [Doc. # 499.] DISH pays [Redacted] dollars each year for those rights. Id. DISH has offered its subscribers Digital Video Recording (“DVR”) since May of 1999. Declaration of Dan Minnick in Support of Defendants’ Motion for Summary Judgment (“Minnick Decl.”) at ¶ 5. [Doc. # 501.] EchoStar Technologies LLC (“EchoS-tar”) is a technology vendor closely affiliated with DISH that, among other things, supplies DISH with satellite television and retransmission services, the set-top boxes (“STBs”) and DVRs that DISH sells and leases to its customers, and technology support service. Minnick Decl. at ¶ 1. EchoStar is not the same entity as EchoS-tar Satellite Corporation, DISH’s predecessor. See n. 3, infra. DISH has a “SlingServiee Services Agreement” with Sling Media, Inc., which is owned by Ech-oStar. DISH GDMF at ¶ 34. B. The Agreements Under Fox and DISH’s agreements, DISH has the right to retransmit Fox programming to its subscribers via satellite. DISH Reply GDMF at ¶ 129. DISH’s right to broadcast Fox programming by satellite is governed by an RTC Agreement entered into by the parties on July 1, 2002 (the “2002 RTC Agreement”) that has subsequently been amended and extended numerous times (in 2004, 2005, 2006, 2007, 2009, and 2010). Shull Decl., Ex. 1 [Doc. #499-1]; Biard Opp. Decl. ¶ 11, Ex. 15. 1. The 2002 RTC Agreement The relevant provisions of the 2002 RTC Agreement are: 2. Retransmission Consent.... [Redacted] 3(d). Carriage of Stations ... [DISH] acknowledges that it shall have no right to distribute all or any portion of the programming contained in any Analog signal on an interactive, time-delayed, video-on-demand or similar basis; provided that Fox acknowledges that the foregoing shall not restrict [DISH’s] practice of connecting its Subscribers’ video replay equipment. 9(a). Copyright and Trademark Licenses • • • “[DISH] shall not, for pay or otherwise, record, copy, duplicate and/or authorize the recording, copying, duplication (other than by consumers for private home use) or retransmission of any portion of any Station’s Analog Signal without prior written permission of the Station, except as is specifically permitted by this Agreement.” 2.The 2004 Agreement On October 1, 2004, the parties entered into another agreement (the “2004 Agreement”). Shull Decl. ¶ 17, Exh. 2. The relevant provision of that Agreement is: 29. Limitation of Liability ... [Redacted] 3.The 2010 Letter Agreement The 2002 RTC Agreement was amended most recently in a Letter Agreement in 2010 (the “2010 Letter Agreement”). Dish Reply GDMF at ¶ 141; Shull Decl., Ex. 3. The relevant provisions of the 2010 Letter Agreement are as follows: Other Technologies. [Redacted] 3. a). FOX Video ON Demand (SD and HD) ... [Redacted] 4. DISH will disable fast forward functionality during all advertisements; [Fox] and DISH may include a pre-roll announcement prior to each show regarding the fast-forward disabling. DISH and [Fox] will discuss in good faith the timing of DISH’s implementation of such fast-forward disabling and messaging to consumers; provided that DISH acknowledges and agrees that such fast-forward disabling is a necessary condition to distribution of the Fox broadcast content via VOD. 5. At no time during the Term may any of the Fox Parties or DISH take any action whatsoever intended to frustrate or circumvent, or attempt to frustrate or circumvent, the protections granted to the other Party pursuant to any provision in this Letter Agreement. The 2010 Letter Agreement contains a merger clause stating that the Letter Agreement “constitutes the entire understanding between the Parties concerning the subject matter of this Letter Agreement.” 2010 Letter Agreement at ¶ 13. It also states that “this Letter Agreement sets forth the complete understanding among the Parties with respect to Retransmission Consent and DISH’s distribution of the Services” and that “[t]his Letter Agreement will not operate as a modification, limitation or waiver of any provision of the Continuing Agreements.” Id. at ¶¶ 10-11. 4.Choice of Law All of the agreements at issue have choice-of-law provisions. The 2002 RTC Agreement states that “[t]his Agreement shall be governed by and construed under and in accordance with the laws of that State of Colorado.” 2002 RTC Agreement at ¶ 18. The 2004 Agreement states that “[t]his Agreement shall be governed .by and construed in accordance with the laws of the State of New York.” 2004 Agreement at ¶ 30. The 2010 Letter Agreement incorporates the New York choice-of-law provision of the 2004 Agreement. 2010 Letter Agreement at ¶ 11. Although the 2002 RTC Agreement states that Colorado law shall apply — and no choice-of-law principle contravenes that express designation — both sides have briefed the issues at all stages of the proceedings on the assumption that New York law applies to each of the agreements. Because Colorado law is substantively different from New York law, particularly with respect to the types of damages available for a breach of contract, it would be prejudicial to the parties to apply Colorado law without any briefing on Colorado law. The Court therefore applies New York law to construe the 2002 RTC Agreement because, through their course of conduct, the parties appear to have waived the provision of the 2002 RTC Agreement that specifies that Colorado law shall apply. See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1267 (9th Cir.2006) (California law applied in spite of a Massachusetts choice-of-law clause provision because “the parties through their course of conduct have waived the provision of the agreement that specifies the application.of Massachusetts law.”). C. The Challenged Products and Features 1. The Hopper and the Hopper with Sling In January of 2012, DISH announced the Hopper “Whole Home” High Definition DVR to its subscribers. Minnick Deck at ¶ 12. One year later, in January of 2013, DISH debuted the “Hopper with Sling,” which is DISH’s next-generation Hopper. Minnick Decl. at ¶ 13; Fox GDMF at ¶ 76. The new Hopper includes a faster processor, built-in wireless capability, built-in Sling functionality, PTAT with AutoHop, and Hopper Transfers. Fox GDMF at ¶ 78. Sling and Hopper Transfers were new features first introduced at that time. Declaration of David Kummer In Support of Defendants’ Motion for Summary Judgment (“Kummer Deck”) at ¶ 14. [Doc. # 500.] 2. Sling Technology DISH offers various products, including the “Hopper with Sling,” that make use of “Sling” technology. DISH Reply GDMF at ¶ 157; Kummer Deck at ¶ 5. Sling technology allows consumers to view television content from their home STBs over the Internet by use of a device that communicates using Internet protocols, such as a laptop, tablet, or smartphone. DISH Reply GDMF at ¶ 85. Sling technology involves the use of both hardware and software. DISH Reply GDMF at ¶ 86. The Sling hardware is a computer chip that rapidly “transcodes” small packets of audiovisual data from either the live satellite signal coming off of the Hopper tuner or from a pre-existing Hopper DVR recording. Id. at ¶ 87. Using the Sling hardware together with the Sling software loaded on a tablet, smart-phone, laptop, or personal computer, the subscriber can send the television content to herself to watch in another location. Id. at ¶85. Sling can only be used by a subscriber to gain access to her own home STB/DVR and the content on that box, either live or recorded. DISH Reply Fox GDMF at ¶ 90. The programming content to which DISH subscribers have access using Sling is that which they have already received via their DISH subscription. Id. at ¶ 105. DISH has a “SlingService Services Agreement” with Sling Media, Inc., which is owned by EchoStar. DISH Reply SAMF at ¶ 141. [Redacted] Id. at ¶ 143. [Redacted] Id. at ¶ 146. [Redacted] Id. at ¶ 147. [Redacted] Id. at ¶ 148. It is undisputed that the Sling process or architecture that enables DISH subscribers to watch live TV on DISH Anywhere requires the operation of various servers and equipment located outside the home. Id. at ¶ 149. The parties dispute whether, when a subscriber requests television content using DISH Anywhere, the programming travels entirely “point-to-point” over the Internet or home WiFi from the subscriber’s STB to her Internet-connected device without any assistance from DISH’s, EchoStar’s, or Sling Media’s external equipment and technicians, or whether that external equipment and those technicians are necessary for DISH Anywhere to function. See DISH Reply GDMF at ¶¶ 88-89, 91-92; DISH GDMF at ¶¶ 35-55. For example, in his August 15, 2014 Deposition, David Kummer, Ech-oStar’s Chief Technology Officer and Rule 30(b)(6) witness, agreed that [Redacted] Declaration of Amy M. Gallegos in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Gallegos Opp. Decl.”), Ex. 28, Transcript of August 15, 2014 Deposition of David Kummer (“Kummer Tr.”) at 49:24-50:2. [536-1.] [Redacted] Kummer also stated that [Redacted] Id. at 114:17-22. In his October 17, 2014 Declaration, however, Kummer stated that [Redacted] Kummer Decl. at ¶ 30. He also stated that, “[t]he audio/video content on the STB travels point-to-point from the source to the consumer’s Internet-connected device using standard TCP/IP and UDP/IP communication point-to-point protocol, through whichever Internet service provider (or providers) the consumer is using in each location.” Id. at ¶ 28. “Directions from the customer for channel changes and fast-forward or rewind functionality also travel point-to-point, without any interaction from Sling.” Id. [Redacted] Id. It is undisputed that [Redacted] DISH Reply GDMF at ¶ 93; Kummer Decl. at ¶¶ 26, 28-29 [Redacted] 3. DISH Anywhere DISH Anywhere.refers to Sling technology that enables subscribers who have either a Hopper with Sling or a Sling Adapter to access live and recorded programming from their STBs remotely on computers and mobile devices. DISH Reply SAMF at ¶¶ 121, 133; Fox GDMF at ¶ 85; Shull Decl. at ¶ 32. In its quick-start features guide for the Hopper with Sling, DISH states that “[o]nly Dish Anywhere lets you access all of your live TV channels ... while on the go via your Internet-connected smartphone, computer, or tablet.” DISH Reply SAMF at ¶ 121. To use DISH Anywhere, a subscriber must either log in to DISHAnywhere.com on a personal computer and download a browser extension called SlingPlayer or download the free DISH Anywhere app for a tablet or smartphone. DISH Reply SAMF at ¶ 135. The subscriber may then send herself live or recorded television on her computer or mobile device. Id. at ¶ 135. When a DISH subscriber logs into the DISH Anywhere website and clicks “Live TV,” she will see a progress bar that shows the process of sending the video to the transcoder, starting to transcode, sending the information to the client, buffering it, and then starting to display it to the end user. Id. at ¶ 133. A subscriber need only create an online ID and download the SlingPlayer once. Id. at ¶ 137. A subscriber who is not in good standing with DISH because she has not paid her bill (or multiple bills) cannot use the Hopper with Sling to activate DISH Anywhere. DISH GDMF at ¶20. DISH subscribers can stream certain live programming (as opposed to viewing via a Sling-enabled STB, as described above) of certain cable television networks — but not Fox programming — on the DISHAnywhere.com website under the “Shows” tab. DISH GDMF at ¶ 198; DISH Reply SAMF at ¶140. The networks available for live streaming include USA, MSNBC and others, but not Fox. Id. at ¶ 139. This programming stream does originate from centralized servers, but does not involve Sling technology or require a Sling-enabled STB. Kummer Opp. Decl. at ¶ 24. 4. Hopper Transfers The Hopper with Sling incorporates a feature originally called Hopper Transfers, now incorporated within the DISH Anywhere mobile application (“app”). Declaration of Paul Horowitz in Support of Defendants’ Motion for Summary Judgment (“Horowitz Decl.”) at ¶ 122. [Doc. # 504.] Hopper Transfers is a feature that allows DISH subscribers, using the DISH Anywhere app, to copy recordings that are saved on their Hopper DVRs to their mobile devices and play them back at any location, even if the mobile device is not connected to the Internet. DISH Reply GDMF at ¶ 107. Copies on the mobile device will not play if the device has not contacted the DISH Anywhere site for 30 days. Id. at ¶ 111. [Redacted] DISH Reply SAMF at ¶ 315. There are some types of DVR recordings that can only be transferred once (ie., HBO content), after which the original recording will be deleted from the Hopper. Id. at ¶ 313. 5. PTAT with AutoHop a. PTAT The Hopper with PTAT was first announced on January 9, 2012, and first became available to subscribers on March 15, 2012. FOX GDMF at ¶ 6. A subscriber may use PTAT to set a single timer on the Hopper to record all of the primetime programming shown on any or all of the four major broadcast networks any or all nights of the week. DISH Reply GDMF at ¶ 13; Minnick Decl. at ¶ 24. The PTAT recordings are made in approximately three-hour blocks, depending on the night, and not on a show-by-show basis. DISH Reply GDMF at ¶ 20. If a primetime show is preempted by local breaking news or a Presidential address, the Hopper will record exactly what is aired during primetime in that local television market. DISH Reply GDMF at ¶ 22. Recordings made with the PTAT feature will be saved for up to eight days and will be deleted after that time, unless the subscriber. decides to save the PTAT recording for a longer period of time in her “My Recordings” folder. DISH GDMF at ¶¶ 63-64; DISH Reply GDMF at ¶ 14. The PTAT recording settings cannot be changed while the recordings are in progress, or fifteen minutes before the PTAT recordings are scheduled to begin. DISH Reply SAMF at ¶ 203. • b. AutoHop The AutoHop feature of PTAT was announced and first provided to DISH subscribers on May 10, 2012. Fox GDMF at ¶ 46. Using AutoHop, users can choose to automatically skip commercials while playing back certain recorded shows. Id. at ¶ 65. AutoHop works when an announcement file is sent from DISH to the user’s STB with a timestamp for the end of each program segment and the beginning of the next. DISH Reply GDMF at ¶ 65. If AutoHop is available for a recorded program, an “Enable AutoHop” pop-up screen appears that states, “You can automatically hop over this event’s commercial breaks. Would you like to enable Auto-Hop for this event?” Fox GDMF at ¶ 49. If the user clicks “yes,” she can watch the recorded show without the commercials. Id. at ¶ 51. At the end of each segment of a show, when a viewer would ordinarily see a commercial break, the recording will automatically skip ahead to the beginning of the next show segment. Id. The commercials are not removed from the recordings viewed with AutoHop, and the recorded files are not altered in any way. Id. at ¶¶ 53-54. ' c. The Quality Assurance Copies Until November 14, 2012, EchoStar employees performed Quality Assurance (“QA”) testing on DISH’s AutoHop feature before delivering the announcement files to the DISH subscribers’ Hoppers to manually confirm the time-stamps in the announcement files. Fox GDMF at ¶ 66; DISH GDMF at ¶ 152; Declaration of Steven M. Casagrande in Support of Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment (“Casagrande Opp. Deck”) at ¶¶ 34-35. [Doc. #457.] EchoStar began testing AutoHop with primetime programming in December of 2008, and by March 17, 2011, EchoStar was testing AutoHop on all primetime events on the four major networks, including Fox. DISH GDMF at ¶¶ 146-47. The QA Hopper DVRs recorded the full primetime schedule on each major network, including Fox. Minnick Deck at ¶ 87. The QA copies were used to mark the start and stop time of the show’s segments, in order to allow users to skip commercials, and to quality-test the functionality of Au-toHop. Id. The copies were used exclusively for testing the AutoHop announcement files and never distributed to any customer. Fox GDMF at ¶ 68. D. The Market for Fox’s Programming Fox has licensed the right to livestream Fox Network programming over the Internet to certain other MVPDs, including [Redacted] DISH Reply SAMF at ¶436. Brennan Decl. at ¶ 16; Declaration of Benjamin (B.J.) Elias in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Elias Opp. Decl.”) at ¶ 13. [Doc. # 437-18]. There is a genuine dispute as to [Redacted]. See DISH Reply SAMF at ¶ 436. Fox also licenses third parties (such as Apple, Amazon, Vudu, and Microsoft) the right to distribute its programs in a commercial-free, downloadable format, which is typically available the day after a program airs on television and viewable on mobile devices, personal computers, or certain Internet-connected TVs. DISH Reply SAMF at ¶ 23. Fox makes its programs available for free, with commercials, eight days after they air, on approved Internet-streaming websites such as fox.com and hulu.com. Id. at ¶ 24. Viewing is limited to personal computers and the fast forward functionality is disabled during commercials. Id. Fox sells advertising for online VOD services where consumers are able to watch a library of previously-aired Fox Programs over the Internet or on mobile devices. Id. at ¶ 25. III. LEGAL STANDARD Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). Material facts are those that may affect the outcome of the case. Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir.2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c), (e)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010) (en banc) (“Rule 56 requires the parties to set out facts they will be able to prove at trial.”). “[T]he inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). IV. DISCUSSION Viewing the evidence in the light most favorable to the non-moving party, the Court addresses whether summary judgment is appropriate as to any of Fox’s claims below. A. DISH Anywhere 1. Copyright Claim: Right of Public Performance Fox contends that DISH has publicly performed Fox’s copyrighted works by streaming them over the Internet to DISH subscribers using DISH Anywhere with Sling. The Copyright Act grants the owner of a copyright the “exclusive right” to “perform the copyrighted work publicly.” 17 U.S.C. § 106(4). Section 101 of the Copyright Act defines the relevant terms: To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the ease of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. 17 U.S.C. § 101. To “transmit” a performance is to communicate [a work] by any device or process whereby images or sounds are received beyond the place from which they are sent. Id. To perform a work “publicly” is to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times [the “Transmit Clause”]. Id. For the Transmit Clause to apply, there must be (1) a transmission or other communication; (2) of a performance of a work; (3) to the public. Not all transmissions are performances, and not all performances are transmissions. See United States v. Am. Soc. of Composers, Authors, Publishers, 627 F.3d 64, 74 (2d Cir.2010) (“transmittal without a performance does not constitute a ‘public performance.’ ”). It is undisputed that, under the 2002 RTC Agreement, DISH has the right to retransmit Fox programming to its subscribers via satellite. DISH Reply GDMF at ¶ 129. This initial transmission clearly constitutes a public performance under the Copyright Act in that DISH (1) shows images and sounds from an audiovisual work; (2) beyond the place from which they are sent; (3) to a large number of people outside of a normal circle of family and friends. See id. at ¶ 120 (DISH delivers satellite service to millions of subscribers). DISH has a valid license for this initial public performance. Id. at ¶ 129. The salient question is whether any of the additional products or features that DISH offers to its subscribers — DISH Anywhere with Sling Technology, in particular — constitute a public performance that infringes on Fox’s exclusive copyrights. a. DISH Anywhere Does Not “Publicly Perform” Fox’s Copyrighted Works Fox contends that the Supreme Court’s recent decision in American Broadcasting Companies, Inc. v. Aereo, Inc. is a game-changer that governs the outcome of its copyright claims in this case. The Court disagrees. In Aereo, the Supreme Court held that Aereo, a service which streamed broadcast television programming to subscribers over the Internet, “publicly performed” the programming as defined by the Transmit Clause. — U.S. -, 134 S.Ct. 2498, 2503, 189 L.Ed.2d 476 (2014). Aereo neither owned the copyright to the broadcast works nor held a license from the copyright owners to perform those works publicly. Id. The Court described Aereo’s service as follows: When a subscriber wants to watch a show that is currently airing, he selects a show from a menu on Aereo’s website. Aereo’s system, which consists of thousands of small antennas and other equipment housed in a centralized warehouse, responds roughly as follows: A server tunes an antenna, which is dedicated to the use of one subscriber alone, to the broadcast carrying the selected show. A transcoder translates the signals received by the antenna into data that can be transmitted over the Internet. A server saves the data in the subscriber-specific folder on Aereo’s hard drive and begins streaming the show to the subscribers’ screen once several seconds of programming have been saved. The streaming continues, a few seconds behind the over-the-air broadcast, until the subscriber has received the entire show. Aereo, 134 S.Ct. at 2500. The Supreme Court determined that Aereo “performed” the copyrighted material. Id. at 2501. It noted that, “[considered alone, the language of the Act does not clearly indicate when an entity ‘performs’ (or ‘transmits’) and when it merely supplies equipment that allows others to do so.” Id. at 2504. The Aereo Court, therefore, looked to the history of the Copyright Act and, in particular, to the 1976 amendment intended to clarify that “community antenna television” (“CATV”) providers are covered by the Act. Id. This amendment “ma[de] clear that an entity that acts like a CATV system itself performs, even when it simply enhances viewers’ ability to receive broadcast television signals.” Id. (emphasis added). Unlike traditional cable services, “Aer-eo’s system remained inert until a subscriber indicate[d] that she wantfed] to watch a program.” Id. at 2507. This fact did not alter the Court’s conclusion that Aereo performed, “given Aereo’s overwhelming likeness to the cable companies.” Id. at 2507. The Court noted that “[i]n other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act.” Id. In an effort to cabin the potential overreach of its decision, however, the Court specifically cautioned that its “limited holding” should not be construed to “discourage or to control the emergence or use of different kinds of technologies.” Id. at 2510. The Court specifically reserved “questions involving cloud computing, remote storage DVRs, and other novel issues not before the Court, as to which Congress has not plainly marked the course,” as not before the Court. Id. at 2510 (internal quotation marks omitted). The Supreme Court did not expressly address the general volitional conduct requirement for direct liability under the Copyright Act. The volitional conduct doctrine is a significant and long-standing rule, adopted by all Courts of Appeal to have considered it, and it would be folly to presume that Aereo categorically jettisoned it by implication. See Fox Broadcasting Co. v. Dish Network, LLC, 723 F.3d 1067, 1073-1074 (9th Cir.2013) (infringement requires “copying by the defendant”); Cartoon Network LP, LLP v. CSC Holdings, Inc. (“Cablevision”), 536 F.3d 121, 131 (2d Cir.2008) (“volitional conduct is an important element of direct liability”); Parker v. Google, 242 Fed.Appx. 833, 837 (3d Cir.2007) (plaintiff does not state a claim of direct copyright infringement because plaintiff “failed to assert any volitional conduct”); CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir.2004) (“The Copyright Act ... describes] only the party who actually engages in infringing conduct — the one who directly violates the prohibitions”) (emphasis in original). The Aereo majority’s analysis can be reconciled with the volitional-conduct requirement for direct infringement. The Aereo Court distinguishes between an entity that “engages in activities like Aereo’s” and one that “merely supplies equipment that allows others to do so.” Id. at 2504. The Court held that a sufficient likeness to a cable company amounts to a presumption of direct performance, but the distinction between active and passive participation remains a central part of the analysis of an alleged infringement. The Aereo Court cited three points of comparison that established Aereo’s “overwhelming likeness” to traditional cable providers: (1) Aereo sold a service that allowed subscribers to watch television programs almost as they were being broadcast; (2) Aereo used its own equipment, housed in a centralized warehouse, outside of its users’ homes; and (3) by means of its technology (antennas, transco-ders, and servers), Aereo’s system received programs that had been released to the public and carried them by private channels to the additional viewers. 134 S.Ct. at 2506. DISH Anywhere also allows subscribers to watch television programs almost as they are being broadcast. See DISH Reply SAMF at ¶ 130 (subscribers can watch live broadcast programming using DISH Anywhere). DISH Anywhere depends on equipment and technology both inside and outside of the user’s home. DISH Reply SAMF at ¶ 149 (DISH Anywhere requires the operation of various servers and equipment located outside the subscriber’s home); ¶ 133 (a DISH subscriber must have either a Hopper with Sling or a Sling Adapter in her home in order to use DISH Anywhere). DISH does not, however, receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did. DISH has a license for the analogous initial retransmission of the programming to users via satellite. DISH Reply GDMF at ¶ 129. Aereo streamed a subscriber-specific copy of its programming from Aereo’s hard drive to the subscriber’s screen via individual satellite when the subscriber requested it, whereas DISH Anywhere can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box. Aereo, 134 S.Ct. at 2500; DISH Reply Fox GDMF at ¶¶90, 105 (emphasis added). Any subsequent transfer of the programming by DISH Anywhere takes place after the subscriber has validly received it, whereas Aereo transmitted its programming to subscribers directly, without a license to do so. Once the DISH subscribers receive the authorized programming, DISH Anywhere facilitates the transfer of those recordings in the STB/DVR to other devices owned by the subscriber. While the parties dispute the extent to which external equipment and employees are involved in this transfer process, there is no material dispute that — [Redacted] the programming does not originate from the external servers. The ultimate function of DISH Anywhere is to transmit programming that is already legitimately on a user’s in-home hardware to a user’s Internet-connected mobile device. Relying on external servers and equipment to ensure that content travels between those devices properly does not transform that service into a traditional cable company. Aereo’s holding that entities bearing an “overwhelming likeness” to cable companies publicly perform within the meaning of the Transmit Clause does not extend to DISH Anywhere, b. Direct Infringement: DISH Does Not Engage in Volitional Conduct to Infringe As discussed above, volitional conduct remains the touchstone of direct infringement. If any public performance occurs when subscribers use DISH Anywhere, DISH may be directly liable if it engages in sufficient volitional conduct enabling that performance. As the Ninth Circuit noted at the preliminary injunction stage in this case, direct infringement turns on who commits the infringement. Fox Broadcasting, 723 F.3d at 1074. “[Operating a system ... at the user’s command does not mean that the system operator, rather than the user, caused the [infringement].” Id.; see also Cablevision, 536 F.3d at 131 (“a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.”); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1168 (C.D.Cal.2002) (defendants must actively engage in one of the activities recognized in the Copyright Act) (emphasis in original). To use DISH Anywhere, a subscriber must create an online ID and download the SlingPlayer. DISH’s system verifies the subscriber’s log-in information, and verifies that the subscriber is in good standing and has paid her bills. The subscriber logs in to DISH Anywhere or opens the DISH Anywhere app, selects the television program she would like to watch, and requests that the live or recorded television programming be sent from the STB in her home to her computer or mobile device. The programming either travels “point-to-point” between the STB and the mohjle device [Redacted]. This process depends to some extent on external equipment and services provided by DISH, but it is the user who initiates the process, selects the content, and receives the transmission. No DISH employee actively responds to the user’s specific request or directly intervenes in the process of sending the programming between the devices. See, e.g., DISH Reply SAMF at ¶143 (EchoStar employees provide user interface, software infrastructure, and server support and maintenance). DISH subscribers, not DISH, engage in the volitional conduct necessary for any direct infringement. c. Secondary Infringement: DISH Subscribers do not “Publicly” Perform by using DISH Anywhere DISH may still be liable for secondary liability if its users are engaging in direct infringement by using DISH Anywhere. “One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 2776, 162 L.Ed.2d 781 (2005); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1175 (9th Cir.2007). There can be no secondary infringement without primary infringement. Grokster, 545 U.S. at 930, 940, 125 S.Ct. 2764; Perfect 10, 508 F.3d at 1169 (“Secondary liability for copyright infringement does not exist in the absence of direct infringement by a third party.”) (internal citation and quotation marks omitted). DISH Anywhere users “transmit” a “performance” within the meaning of Section 101 of the Copyright Act, in that they use a device or process to transmit images and sounds from audiovisual work beyond the place from which they are sent. The remaining question is whether they perform a copyrighted work “publicly.” In rejecting Aereo’s argument that it did not transmit a performance “to the public,” the Aereo Court noted that nothing in the record before it suggested that the subscribers received the performances “in their capacities as owners or possessors of the underlying works,” and that this factor could affect whether or not the subscribers constituted “the public.” 134 S.Ct. at 2510. DISH subscribers are not “owners” of the copyrighted programming. DISH has expressly' disclaimed any ownership rights in the underlying programming, and agreed to various restrictions on its use of the material as a condition of the license. DISH is a licensee, and therefore cannot transfer title or ownership to its subscribers. DISH subscribers are, however, valid “possessors” of the copyrighted works that are stored in the STB in their home. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456, 104 S.Ct. 774, 795, 78 L.Ed.2d 574 (1984); see also Vernor v. Autodesk, Inc., 621 F.3d 1102, 1112 (9th Cir.2010) (noting that some users “rightfully possess, but do not own, a copy of copyrighted [material].”). DISH has a valid license and is permitted to transmit Fox programming to subscribers accordingly. When an individual DISH subscriber transmits programming rightfully in her possession to another device, that transmission does not travel to “a large number of people who are unknown to each other.” The transmission travels either to the subscriber herself or to someone in her household using an authenticated device. This is simply not a “public” performance within the meaning of the Transmit Clause. Because DISH Anywhere subscribers do not directly infringe the public performance right, DISH cannot be liable for secondary infringement. The Court GRANTS DISH’s motion for summary judgment as to the claim for copyright infringement by DISH Anywhere with Sling and DENIES Fox’s motion for partial summary judgment as to the same. 2. Contract Claims a. DISH Anywhere Does Not Breach the Other Technologies Provision of the 2010 Letter Agreement The 2010 Letter Agreement states that [Redacted] [hereinafter “Other Technologies Provision”]. Fox contends that DISH is “distributing” Fox’s programming over the Internet in breach of the Other Technologies Provision of the 2010 Letter by providing subscribers with DISH Anywhere with Sling. Fox MSJ at 8, 19. Under New York law, courts determine the meaning of a contract by “looking within the four corners of the document, not to outside sources.” Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174, 180-81 (1998). “Where the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole.” Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 997 N.Y.S.2d 339, 21 N.E.3d 1000, 1003 (2014). Clear and unambiguous terms should be understood in their plain, ordinary, and non-technical meaning. DDS Partners, LLC v. Celenza, 775 N.Y.S.2d 319, 321, 6 A.D.3d 347, 348 (App.Div.2004). “[Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.” Golden Gate Yacht Club v. Societe Nautique De Geneve, 12 N.Y.3d 248, 256, 879 N.Y.S.2d 363, 907 N.E.2d 276, 281 (2009). “Where a contract contains a merger clause, a court is obliged to require full application of the parol evidence rule.” Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436, 963 N.Y.S.2d 613, 986 N.E.2d 430, 433-34 (2013) (internal citations and quotation marks omitted); see also Schron v. Grunstein, 917 N.Y.S.2d 820, 825, 32 Misc.3d 231, 236 (Sup.Ct.2011), aff'd sub nom. Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 963 N.Y.S.2d 613, 986 N.E.2d 430 (2013) (agreements containing merger provision evidence an intent of the parties that full application of the parol evidence rule is appropriate to bar the introduction of extrinsic evidence to vary, contradict, or add to the terms of the writing). Under the parol evidence rule, “conversations, negotiations, and agreements made by the parties either prior to or contemporaneously with the execution of a written lease are considered as having been merged in the final written instrument, and ... therefore, parol or extrinsic evidence in relation to such conversations, negotiations, and antecedent or contemporaneous agreements cannot be admitted in evidence for the purpose of attempting to vary or contradict an unambiguous written [agreement].” Deutsche Bank Nat. Trust Co. v. Debonis, 22 Misc.3d 1128(A), 880 N.Y.S.2d 872 (2009) (internal citations and quotation marks omitted); see also N. Fork Bank & Trust Co. v. Bernstein & Gershman, 607 N.Y.S.2d 135, 136, 201 A.D.2d 472, 472-73 (App.Div.1994) (“[t]o the extent that the defendants relied upon prior or contemporaneous negotiations with the plaintiff at the time of the execution of the notes and guarantees in order to vary the terms of those documents, such assertions violated the parol evidence rule”); Morpheus Capital Advisors LLC v. UBS AG, 23 N.Y.3d 528, 533, 992 N.Y.S.2d 178, 181 (2014) (emails between the parties and earlier drafts of the agreement considered parol evidence). Both sides offer extensive and much-disputed parol evidence regarding the negotiations of the Other Technologies Provision, and, in particular, whether the provision was intended to permit or prohibit the use of Sling technology. See, e.g., DISH Reply GDMF at ¶¶ 161-170; DISH Reply SAMF at ¶¶ 52-68. Because the 2010 Letter Agreement has a merger clause [see ¶ 13], the parol evidence rule must be strictly applied. Therefore, no evidence of conversations, negotiations, and agreements made by the parties either prior to or contemporaneously with the execution of the Agreement are admissible to vary, add to, or contradict the terms of the Agreement. Here, the only terms genuinely at issue are [Redacted] and [Redacted]. The Court must therefore look to the four corners and the plain meaning of the words of the Agreement to determine its meaning. It is undisputed that DISH Anywhere with Sling makes use of the Internet. DISH Reply SAMF at ¶ 53. The remaining questions are therefore (1) whether DISH Anywhere “distributes” or “retrans.mits” Fox’s programming, (2) whether DISH or DISH’s subscribers do the retransmitting or distributing, and (3) what it means that [Redacted] [“Applicable Law Clause”]. i. DISH Anywhere Users Retransmit Fox’s Programming Merriam-Webster defines “transmit” as: “to send (information, sound, etc.) in the form of electrical signals to a radio, television, computer, etc.” or “to give or pass (information, values, etc.) from one person to another.” http://www.merriam-webster. com/dictionary/transmit (last visited January 7, 2015). Black’s Law Dictionary defines “transmit” as “to send or transfer (a thing) from one person or place to another.” Black’s Law Dictionary (9th ed.2009). Macmillan Dictionary defines “re-” as a prefix meaning “again” that is “used with many verbs, nouns, or adjectives.” http:// www.macmillandictionary.com/us/ dictionary/ameriean/re_9 (last visited January 7, 2015). As discussed above, under the Copyright Act, “transmit” means to “communicate [a work] by any device or process whereby images or sounds are received beyond the place from which they are sent.” 17 U.S.C. § 101. While statutory definitions do not definitively govern the interpretation of terms in a private agreement, the meaning of a term within an applicable body of law can guide a court in determining a contract term’s unambiguous meaning. See Madison Ave. Leasehold, LLC v. Madison Bentley Associates LLC, 811 N.Y.S.2d 47, 53, 30 A.D.3d 1, 8 (App.Div.2006), aff'd, 8 N.Y.3d 59, 828 N.Y.S.2d 254, 861 N.E.2d 69 (2006) (in interpreting a contract term, the reasonable expectations of parties to an agreement will be interpreted with reference to existing law at the time the agreement was made); VTech Holdings, Ltd. v. Pricewaterhouse Coopers, LLP, 348 F.Supp.2d 255, 265 (S.D.N.Y.2004) (New York law presumes that contracts, especially those drawn by attorneys, are concluded with reference to applicable law); see also Mayo v. Royal Ins. Co. of Am., 242 A.D.2d 944, 662 N.Y.S.2d 654, 655 (1997) (“unless a contract provides otherwise, the law in force at the time the agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law.”); Nau v. Vulcan Rail & Constr. Co., 286 N.Y. 188, 198, 36 N.E.2d 106 (1941) (the sense in which words were used in a contract is to be determined by the applicable law). DISH argues that “retransmission” is used in the agreement to mean a “DBS-based multicast,” and “Sling is not a DBS multicast.” DISH GDMF at 158, DISH’s Responses to Fox’s Conclusions of Law (“DISH Response COL”) at ¶ 4. Nothing in the Agreement, however, expressly limits “retransmit” to the context of a DBS-based multicast. Indeed, the Other Technologies Provision at issue here [Redacted] It is not logical to interpret retransmission as applying only to DBS-based satellite transmission (which is permitted by the Agreement) in the context of language that [Redacted] Applying the plain and ordinary meaning of the term “retransmit,” DISH Anywhere • “retransmits” Fox’s programming. The fundamental purpose of DISH Anywhere is to transfer programming from one device to another device in a different location, communicating sounds and images by sending electrical signals to a computer or mobile device. The remaining question, however, is whether it is DISH or the DISH subscriber who is doing the retransmission. It is undisputed that to use DISH Anywhere, a subscriber must log in to DISH Anywhere or open the DISH Anywhere app, select the television program she would like to watch, and send herself the live or recorded television programming on her computer or mobile device. DISH Reply SAMF at ¶¶ 133-135. This process depends to some extent on external equipment and services provided by DISH, but it is the user who initiates the process, makes her selection, and receives the selected transmission. DISH provides a system allowing the user to send a transmission to herself and provides support for that system, but it does not otherwise dictate the user’s conduct. On this record, even when viewing the evidence in the light most favorable to Fox, the' Court concludes that it is the DISH user, not DISH, who does the retransmitting. ii. DISH Anywhere Does Not Distribute Fox Programming Merriam-Webster defines “distribute” as “to give or deliver (something) to people,” “to deliver (something) to a store or business,” or “to divide (something) among the members of a group.” http://www.merriam-webster.com/ dictionary/distribute (last visited January 7, 2015). Black’s Law Dictionary defines “distribute” as “1. To apportion; to divide among several. 2. To arrange by class or order. 3. To deliver. 4. To spread out; to disperse.” Black’s Law Dictionary (9th ed.2009). Under the Copyright Act, distribution is defined as “actual dissemination of a copy” that “changes hands.” Fox Broadcasting Co., Inc. v. Dish Network, LCC, 905 F.Supp.2d 1088, 1106 (C.D.Cal.2012), aff'd, 723 F.3d 1067 (9th Cir.2013) (citing Perfect 10 v. Amazon.com, Inc., 508 F.3d at 1162). According to any of the above-quoted dictionary or statutory definitions, the plain meaning of “distribute” is (1) to deliver (2) to multiple people or a group of people. While DISH Anywhere may facilitate delivery of programming to another device owned by the subscriber, it does not disseminate programming to a group of people. The subscriber transmits the programming to herself or other members of her household who use the same authenticated device. This does not constitute “distribution” under the plain meaning of the term. iii. The Applicable Law Clause DISH contends that the Applicable Law Clause means rights under the Copyright Act, “the ‘applicable law* for so much of the parties’ relationship.” DISH MSJ at 31. Fox does not appear to dispute this interpretation. See Fox MSJ at 4 (asserting that because Aereo establishes that DISH Anywhere is a public performance in violation of the Copyright Act, DISH “cannot take refuge” in the “rights under applicable law” clause); Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Fox MSJ Opp.”) at 12 [Doc. # 531.] DISH contends that because “[applicable law in 2010 recognized the fair use right of DISH’s customers to place-shift for non-commercial purposes ... [w]hether DISH or the subscriber uses Sling, Sony provides a fair use safe harbor.” DISH Response COL at ¶ 4. See Sony, 464 U.S. at 449-450, 104 S.Ct. 774; A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001); Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir.1999). The Applicable Law Clause, however, refers to the clause directly preceding it, which prohibits DISH from retransmitting or distributing Fox programming over the Internet. It would be a non sequitur in this context to interpret the Applicable Law Clause to refer to the rights of DISH subscribers to time- and place-shift. The parties have not argued that place-shifting by DISH would be fair use, given that such conduct would be unlikely to be characterized as a “non-commercial” use. Neither party has offered a plausible interpretation regarding what legal rights of DISH, as opposed to those of the DISH subscriber, are reserved under the Applicable Law Clause that would not deprive the preceding clause of full force and meaning. See Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 46, 150 N.Y.S.2d 171, 133 N.E.2d 688, 690 (1956) (rules of contract construction require courts, if possible, to adopt an interpretation that gives meaning to every provision of the contract and leaves no provision of a contract without force and effect). In any event, as discussed above, the uncontroverted material facts show that DISH subscribers, rather than DISH itself, “retransmit” Fox’s programming using DISH Anywhere, and that DISH Anywhere does not “distribute” Fox’s programming. Therefore, even assuming the Applicable Law Clause preserves subscribers’ rights to time- and place- shift from the effect of the preceding clause, it does not change the conclusion that DISH subscribers’ use of DISH Anywhere does not breach the Other Technologies Provision. DISH’s motion for summary judgment as to this issue is GRANTED and Fox’s motion for summary judgment as to this issue is DENIED. b. DISH Anywhere Breaches The No Copying Provision of the 2002 RTC Agreement. Section 9(a) of the 2002 RTC Agreement states that “[Dish] shall not, for pay or otherwise, record, copy, duplicate and/or authorize the recording, copying, duplication (other than by consumers for private home use) or retransmission of any portion of the Stations’ analog signal without prior written permission of the Station, except as is specifically permitted by this Agreement.” 2002 Agreement at ¶ 9(a) [“No Copying Provision”]. Fox contends that DISH “authorizes” its subscribers to “retransmit” Fox’s programming when DISH’s subscribers use DISH Anywhere. Fox MSJ at 21. Fox argues that, given the fact that only DISH subscribers who have paid DISH a subscription fee and logged into DISH’s website can watch Fox programs using DISH Anywhere, DISH is “authorizing” them to do so. Fox MSJ at 21. As discussed above, DISH Anywhere users clearly “retransmit” Fox programming. The Court finds that DISH also “authorizes” them to do so. Black’s Law Dictionary defines “authorize” as “to give legal authority; to empower” or “to formally approve; to sanction.” Black’s Law Dictionary (9th ed.2009). Merriam-Webster defines “authorize” as: “to give power or permission to (someone or something)” or “to give legal or official approval to or for (something).” http:// www.merriam-webster.com/dictionary/ authorize (last visited January 7, 2015). DISH subscribers agree to a contract with DISH in which DISH provides them with equipment and services, and the subscribers make use of those features and products. DISH Reply SAMF at ¶ 133; Fox GDMF at ¶ 85 (DISH Anywhere is a service available to DISH subscribers who have a Hopper with Sling or Sling Adapter). DISH “authorizes” its subscribers to use its products in their intended manner because it gives them the power to do so (by providing the equipment and services) and the permission to do so (by granting them status as subscribers for payment). Conversely, non-DISH subscribers would not be “authorized” to use DISH Anywhere to retransmit Fox programming to their electronic devices. The No Copying Provision includes a carve-out for “private home use” by consumers. Thus, DISH subscribers may time- and place-shift Fox programming within the confines of their home. DISH argues that the word “home” in the phrase “private home use” does not literally mean “inside the home,” but rather “private noncommercial use of the sort done at home.” DISH MSJ Opp. at 30 (internal quotation marks omitted). The ordinary and unambiguous meaning of the words “private home use” belies this definition. Use outside of the home may be “private noncommercial use,” but it is not “home use.” The parties could have used the words “private noncommercial use,” but chose to insert the words “home use.” Given our knowledge of current technologies, it may seem absurd that a contract would allow subscribers to use DISH Anywhere on their mobile devices inside the home, but not the moment they step outside the home. Those are the terms, however, to which the parties agreed. Courts must interpret a contract to give effect to the parties’ reasonable expectations. Greater New York Mut. Ins. Co. v. Mut. Marine Office, Inc., 3 A.D.3d 44, 769 N.Y.S.2d 234, 239 (2003). Nothing in the record suggests that, at the time the parties entered into the 2002 RTC Agreement, DISH possessed the technology allowing subscribers to make portable recordings of programming on mobile devices. See, e.g., DISH Reply Fox GDMF (DISH first offered subscribers the ability to make portable recordings of programs in 2005). The narrow exception to the general prohibition on copying was made with reference to the then-existing technologies, such as DVRs, which were used exclusively in the home. Evans v. Famous Music Corp., 1 N.Y.3d 452, 458, 775 N.Y.S.2d 757, 807 N.E.2d 869, 872 (2004) (“It is well settled that our role in interpreting a contract is to ascertain the intention of the parties at the time they entered into the contract.”). Had the parties wished to define the exception more broadly to include any private, non-commercial use, including future technologies not then contemplated, they could have explicitly done so. The Court does not find that any subsequent amendments stripped out the explicit home use limitation in the No Copying Provision. The plain language of the 2002 RTC Agreement prohibits all copying of Fox programming for any use other than private use in the home, absent Fox’s written permission. It is not genuinely disputed that DISH Anywhere permits users to retransmit Fox content to electronic devices for use outside of the home. DISH Reply SAMF at ¶ 121 (“Only Dish Anywhere lets you access all of your live TV channels ... while on the go via your Internet-connected smartphone, computer, or tablet.”). Devices like tablets, iPads, laptops, and smartphones are frequently used outside the home, and users are encouraged to “access” their live TV channels “on the go.” Id. Fox did not give DISH its consent to offer this service to subscribers for use outside the home. To the extent DISH authorizes its users