FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al
Filing
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ANSWER to 5 Amended Complaint , COUNTERCLAIM against AEREOKILLER LLC,, FILMON.TV NETWORKS, INC.,, FILMON.COM, INC,, FILMON.TV, INC. by AEREOKILLER LLC,, FILMON.TV NETWORKS, INC.,, FILMON.COM, INC,, FILMON.TV, INC.. Related document: 5 Amended Complaint filed by CBS STUDIOS, CBS BROADCASTING, INC.,, GANNETT CO., INC.. (Attachments: # 1 Supplement Counterclaim)(Davidson, Kerry)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
FOX TELEVISION STATIONS, INC., et al.
Plaintiffs/Counter-Defendants,
v.
Civil No. 1:13-cv-00758 (RMC)
AEREOKILLER LLC, et al.
Defendants/Counter-Plaintiffs.
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ANSWER
Defendants FilmOn X, LLC, formerly Aereokiller LLC (“FilmOn X”), FilmOn.TV, Inc.,
FilmOn.TV Networks, Inc., and FilmOn.com, Inc. (collectively, “Defendants”) hereby answer
Plaintiffs Fox Television Stations, Inc., Twentieth Century Fox Film Corporation, Fox
Broadcasting Company, NBC Subsidiary (WRC-TV) LLC, NBC Studios LLC, Universal
Network Television LLC, Open 4 Business Productions LLC, Telemundo Network Group LLC,
American Broadcasting Companies, Inc., Disney Enterprises, Inc., and Allbritton
Communications Company (collectively, “the Networks”) Complaint, by paragraph, as follows:
1.
Deny.
2.
In answering Paragraph 2, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 2.
3.
In answering Paragraph 3, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 3.
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4.
In answering Paragraph 4, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 4.
5.
In answering Paragraph 5, Defendants admit that “[t]he district court in the
California Actions limited the injunction to the Ninth Circuit” and “declined to enjoin
preliminarily Defendants’ activities in all circuits other than the Ninth Circuit.” Defendants
otherwise deny all other allegations of Paragraph 5.
6.
In answering Paragraph 6, Defendants admit that “Plaintiffs in Aereo appealed the
district court’s decision” and that “on April 1, 2013, a…panel of the Second Circuit Court of
Appeals affirmed the Aereo decision. See WNET Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir.
Apr. 1, 2013) (“Aereo”).” Defendants otherwise deny all allegations of Paragraph 6.
7.
In answering Paragraph 7, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 7.
8.
Contains no allegation that requires an admission or denial.
9.
Admit that the Court has jurisdiction.
10.
Admit that the Court has jurisdiction.
11.
Deny.
12.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
13.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
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14.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
15.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
16.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
17.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
18.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
19.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
20.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
21.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
22.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
23.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
24.
In answering Paragraph 24, Defendants admit that “Defendant Aereokiller LLC is
a Delaware limited liability corporation.” Defendant otherwise deny all allegations of Paragraph
24.
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25.
In answering Paragraph 25, Defendants admit that “Defendant FilmOn.TV, Inc. is
a Delaware corporation.” Defendants otherwise deny all allegations of Paragraph 25.
26.
In answering Paragraph 26, Defendants admit that “Defendant FilmOn.TV
Networks, Inc. is a Delaware corporation” and “FilmOn.TV Networks, Inc.’s business address is
301 N. Canon Drive, Beverly Hills, California.” Defendants otherwise deny all allegations of
Paragraph 26.
27.
In answering Paragraph 27, Defendants admit that “Defendant FilmOn.com, Inc.
is a Delaware corporation.” Defendants otherwise deny all allegations of Paragraph 27.
28.
Deny.
29.
Deny.
30.
In answering Paragraph 30, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 30.
31.
In answering Paragraph 31, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 31.
32.
In answering Paragraph 32, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 32.
33.
Deny.
34.
Defendants incorporate paragraphs 1-33 as if set forth fully herein.
35.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
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36.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
37.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
38.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
39.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
40.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
41.
Defendants are without sufficient knowledge or information to form a belief as to
the truth of this paragraph.
42.
In answering Paragraph 42, Defendants state that it contains arguments, opinions
and legal conclusions that require no response. Defendants otherwise deny the allegations of
Paragraph 42.
43.
Deny.
AFFIRMATIVE DEFENSES
Pursuant to Rule 8(c) of the Federal rules of Civil Procedure, Defendants further plead
the following separate and additional defenses. By pleading these defenses, Defendants do not in
any way agree or concede that it has the burden of proof or persuasion on any of these issues.
Defendants reserve the right to assert such additional affirmative defenses as discovery indicates
are proper.
FIRST AFFIRMATIVE DEFENSE
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(Failure to State A Claim)
The Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
(Comparative Fault)
The Complaint is barred, in whole or in part, based on the doctrine of comparative fault.
THIRD AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
The Complaint is barred, in whole or in part, based on Plaintiffs’ failure to mitigate
damages.
FOURTH AFFIRMATIVE DEFENSE
(Estoppel)
The Complaint is barred, in whole or in part, based on the principles of estoppels.
FIFTH AFFIRMATIVE DEFENSE
(Fair Use)
The Complaint is barred, in whole or in part, by the doctrine of fair use.
SIXTH AFFIRMATIVE DEFENSE
(Laches)
The Complaint is barred, in whole or in part, by the doctrine of laches.
SEVENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
The Complaint is barred, in whole or in part, by the doctrine of unclean hands.
EIGHTH AFFIRMATIVE DEFENSE
(Waiver)
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The Complaint is barred, in whole or in part, by the doctrine of waiver.
NINTH AFFIRMATIVE DEFENSE
(First Amendment)
The Complaint is barred, in whole or in part, because application of the Copyright Act to
impose liability in this case would violate the First Amendment to the United States Constitution.
TENTH AFFIRMATIVE DEFENSE
(Copyright Abandonment)
The Complaint is barred, in whole or in part, to the extent any Plaintiffs have forfeited or
abandoned copyright or failed to comply with all necessary formalities.
ELEVENTH AFFIRMATIVE DEFENSE
(Innocent Infringers)
The Complaint is barred, in whole or in part, to the extent any persons, based on whose
behavior seek to hold Defendants liable, are innocent infringers.
TWELFTH AFFIRMATIVE DEFENSE
(Supervening Events)
The Complaint is barred, in whole or in part, because any alleged injury or loss sustained
by Plaintiffs was caused by intervening or supervening events over which Defendants had and
have no control.
THIRTEENTH AFFIRMATIVE DEFENSE
(Responsibility of Third Parties)
The Complaint is barred, in whole or in part, because any alleged injury or loss sustained
by Plaintiffs was the fault and responsibility of third parties over whom Defendants had and have
no control, and for whose actions Defendants had and have no responsibility.
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FOURTEENTH AFFIRMATIVE DEFENSE
(Express or Implied License)
The Complaint is barred, in whole or in part, because Plaintiffs have granted an express
or implied license in some or all of their copyrighted works to Defendants.
ADDITIONAL AFFIRMATIVE DEFENSES
(Subsequently Discovered Defense)
Defendant has insufficient knowledge or information upon which to form a
belief as to whether it may have additional affirmative defenses, and reserves the
right to assert additional defenses if and as it learns of facts that may support such
defenses.
June 24, 2013
Respectfully submitted,
By: /s/ Jaime W. Marquart
Jaime W. Marquart
BAKER MARQUART LLP
10990 Wilshire Blvd., Fourth Floor
Los Angeles, California 90024
(424) 652-7811 (telephone)
(424) 652-7850 (facsimile)
/s/Kerry J. Davidson
LAW OFFICE OF KERRY J. DAVIDSON
1738 Elton Road, Suite 113
Silver Spring, Maryland 20903
(301) 586-9516 (telephone)
(866) 920-1535(facsimile)
Bar No.: 456431
Attorneys for Defendants and Counterclaim
Plaintiffs FilmOn X LLC, FilmOn.TV, Inc.,
FilmOn.TV Networks, Inc., and FilmOn.com, Inc.
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