FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al

Filing 13

Amended COUNTERCLAIM against All Plaintiffs filed by AEREOKILLER LLC,, FILMON.TV NETWORKS, INC.,, FILMON.COM, INC,, FILMON.TV, INC..(Davidson, Kerry)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
CIVIL ACTION NO. 1:13-cv-00758 (RMC)

FOX TELEVISION STATIONS, INC., et al.

AEREOKILLER LLC, et al.

AEREOKILLER LLC’S, FILMON.TV
NETWORKS, INC.’S, FILMON.TV,
INC.’S, 1:13-cv-00758 (RMC)
Civil No.AND FILMON.COM, INC’S
ANSWER AND AFFIRMATIVE
DEFENSES TO COMPLAINT;

Defendants/Counter-Plaintiffs.
_______________________________________

COUNTERCLAIM FOR DECLARATORY
JUDGMENT

Plaintiffs/Counter-Defendants,
v.

AMENDED COUNTERCLAIM
Counterclaim Plaintiffs, by their attorneys, allege against Counterclaim Defendants 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., Allbritton Communications Company, CBS
Broadcasting Inc., CBS Studios Inc., and Gannett Co., Inc. (collectively, “the Networks”) as
follows:
INTRODUCTION
1.

To the extent that any defendant would have any liability by way of this or any

other action related to the mini-antenna services associated with defendant FilmOn X, all
defendants to this action (“Counterclaim Plaintiffs”) hereby counterclaim against all of the
Plaintiffs for a declaration that the FilmOn X service does not infringe upon any of the
defendants’ copyrights. FilmOn X’s technology serves an important government interest in
“preserving the benefits of free, over-the-air local broadcast television” recognized by the

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Supreme Court in Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997), by
providing a unique technology that allows consumers access to their own remotely located
television antenna and DVR, thereby enabling consumers to create and access from any Internetenabled device unique copies of the same free-to-air broadcast programming that they would
have been able to access freely with a traditional “rabbit ears” antenna and traditional DVR. The
FilmOn X technology enhances customers’ ability to watch the same free over-the-air broadcast
content that the American public is entitled to receive in accordance with the public interest
recognized by Congress and the Supreme Court.
2.

Despite FilmOn X’s furthering of these important interests, Counterclaim

Defendants (collectively, “the Networks”) – who have already been denied a preliminary
injunction against Aereo, a company employing technology similar to FilmOn X, in the Second
Circuit – continue to attempt to block consumers’ access to valuable and beneficial technologies
like FilmOn X’s. Consistent with the same anticompetitive purpose that caused NBC to refuse to
deal with defendant FilmOn (even when required to do so by law), the Networks have taken their
fight against these emerging technologies to the courts, filing disruptive and redundant litigation
in multiple jurisdictions.
3.

This repetitive litigious behavior is inconsistent with the statutory obligations

associated with the broadcast licenses granted to the Networks, which enable the Networks to
access valuable broadcast frequencies – a public trust. Having initially accepted billions of
dollars in public resources and various other regulatory benefits, the Networks now seek to
renege on the deal struck with Congress under the Communications Act of 1934 and abandon
their responsibilities to the American public. Only broad declaratory relief like that sought in
this Counterclaim can preserve this public trust.

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JURISDICTION AND VENUE
4.

This is an action for declaratory judgment pursuant to 28 U.S.C. § 2201 and Fed.

R. Civ. P. 57, seeking a declaration of rights regarding the parties to this litigation with respect to
an actual and justiciable controversy arising under the copyright laws of the United States, 17
U.S.C. § 101 et seq.
5.

This Court has exclusive jurisdiction over the copyright subject matter of this

action pursuant to the Copyright Act (17 U.S.C. § 101 et seq.), 28 U.S.C. §1331, 1338, and the
Declaratory Judgment Act (28 U.S.C. § 2201).
6.

Venue is proper in this district pursuant to 28 U.S.C. § 1391.
PARTIES

7.

Counterclaimant FilmOn X, LLC is a Delaware limited liability company.

8.

Counterclaimant FilmOn.com, Inc. (“FilmOn”) is a Delaware corporation with its

principal place of business at 301 N. Canon Drive, Beverly Hills, California.
9.

Counterclaimant FilmOn.TV Networks, Inc. (“FilmOn”) is a Delaware

corporation with its principal place of business at 301 N. Canon Drive, Beverly Hills, California.
10.

Counterclaimant FilmOn.TV, Inc. (“FilmOn”) is a Delaware corporation with its

principal place of business at 301 N. Canon Drive, Beverly Hills, California.
11.

On information and belief, Counterclaim Defendant Fox Broadcasting Company

is a Delaware corporation with its principal place of business at 10201 West Pico Blvd., Los
Angeles, California. Fox Broadcasting Company operates the Fox network, a national broadcast
television network (the “Fox Network”).
12.

On information and belief, Counterclaim Defendant Twentieth Century Fox Film

Corp. is a Delaware corporation with its principal place of business at 10201 West Pico Blvd.,

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Los Angeles, California. Twentieth Century Fox owns copyrights in certain original primetime
television programs broadcast on the Fox Network and distributed via other media in the United
States and around the world.
13.

On information and belief, Counterclaim Defendant Fox Television Stations, Inc.

(“FTS”), a Delaware corporation, owns and operates numerous local broadcast television stations
that broadcast television programming, including the Fox Network, over-the-air to numerous
localities throughout the United States, including WTTG in Washington, D.C., which broadcasts
the Fox Network to viewers over-the-air on channel 5 in the Washington, D.C. market. The FCC
has licensed FTS to operate WTTG (among other television stations). FTS is actively engaged,
among other things, in the production and distribution of television programs and other
copyrighted works, including local news programming. Cable systems, satellite services and
other multichannel video programming distributors also make retransmissions of WTTG
television broadcasts available to their subscribers upon negotiating the right to do so under
Section 325(b) of the Communications Act, 47 U.S.C. § 325(b).
14.

On information and belief, Counterclaim Defendant NBC Subsidiary (WRC-TV)

LLC (“WRC”) is a Delaware limited liability company with its principal place of business at
4001 Nebraska Avenue, NW, Washington, D.C. WRC owns and operates the television station
WRC-TV, which is an FCC-licensed broadcast station that broadcasts to viewers over-the-air on
channel 4 in the Washington, D.C. market. WRC-TV is affiliated with the NBC Television
Network, a national broadcast network. WRC is actively engaged, among other things, in the
production and distribution of television programs and other copyrighted works, including local
news programming. Cable systems, satellite services and other multichannel video programming
distributors also make retransmissions of WRC-TV television broadcasts available to their

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subscribers upon negotiating for the right to do so under Section 325 of the Communications
Act, 47 U.S.C. § 325.
15.

On information and belief, Counterclaim Defendant NBC Studios LLC (“NBC

Studios”) is a Delaware limited liability company with its principal place of business at 100
Universal City Plaza, Universal City, California. NBC Studios is actively engaged in the
production and licensed distribution of television programs, including programs that are
transmitted to numerous broadcast stations in the United States affiliated with the NBC
Television Network and distributed elsewhere in the world.
16.

On information and belief, Counterclaim Defendant Universal Network

Television LLC (“UNT”) is a Delaware limited liability company with its principal place of
business at 100 Universal City Plaza, Universal City, California. UNT is actively engaged in the
production and licensed distribution of television programs, including programs that are
transmitted to numerous broadcast stations in the United States affiliated with the NBC
Television Network and distributed elsewhere in the world.
17.

On information and belief, Counterclaim Defendant Open 4 Business Productions

LLC (“O4B”) is a Delaware limited liability company with its principal place of business at 100
Universal City Plaza, Universal City, California. O4B is actively engaged in the production and
licensed distribution of television programs, including programs that are transmitted to numerous
broadcast stations in the United States affiliated with the NBC Television Network and
distributed elsewhere in the world.
18.

On information and belief, Counterclaim Defendant Telemundo Network Group

LLC (“Telemundo”) is a Delaware limited liability company with its principal place of business
at 2290 West 8th Avenue, Hialeah, Florida. Telemundo is, among other things, actively engaged

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in the production and licensed distribution of Spanish-language television programs, including
programs that are transmitted to numerous broadcast stations in the United States affiliated with
the Telemundo Network, a broadcast network, and distributed elsewhere in the world.
19.

On information and belief, Counterclaim Defendant American Broadcasting

Companies, Inc. (“ABC”) is a Delaware corporation with its principal place of business at 77
West 66th Street, New York, New York, and does business as the ABC Television Network.
ABC is actively engaged in the production and distribution of television programs and other
copyrighted works, including programs ABC transmits to numerous broadcast television stations
that it owns as well as other stations that are affiliated with its ABC Television Network and with
other networks, in the United States. ABC grants these stations the right to broadcast
programming within their communities of license. ABC is a wholly-owned, indirect subsidiary
of plaintiff Disney Enterprises, Inc.
20.

On information and belief, Counterclaim Defendant Disney Enterprises, Inc.

(“DEI”) is a Delaware corporation with its principal place of business at 500 S. Buena Vista
Street, Burbank, California. DEI is actively engaged in the licensing of its copyrighted
properties, and certain of its affiliates are engaged in the worldwide production and distribution
of copyrighted entertainment products, including programs that television broadcast stations and
other media outlets transmit or retransmit to the public.
21.

On information and belief, Counterclaim Defendant Allbritton Communications

Company (“Allbritton”) is a Delaware corporation with its principal place of business at 1000
Wilson Boulevard, Suite 2700, Arlington, Virginia. Allbritton owns and operates the television
station WJLA-TV, which is an FCC-licensed broadcast station that broadcasts to viewers overthe-air on channel 7 in the Washington, D.C. market. WJLA-TV is affiliated with the ABC

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Television Network. Allbritton is actively engaged, among other things, in the production and
distribution of television programming and other copyrighted works, including local news
programming. Cable systems, satellite services and other multichannel video programming
distributors also make retransmissions of WJLA-TV television broadcasts available to their
subscribers upon negotiating for the right to do so under Section 325 of the Communications
Act, 47 U.S.C. § 325.
22.

On information and belief, Counterclaim Defendant CBS Broadcasting Inc.

(“CBS”) is a New York corporation with its principal place of business at 51 West 52nd Street,
New York, New York. CBS is actively engaged in the production and distribution of television
programs and other copyrighted works, including programs CBS transmits to numerous
broadcast television stations that it owns as well as other stations in the United States that are
affiliated with its CBS Television Network. CBS grants these stations the right to broadcast
programming within their communities of license.
23.

On information and belief, Counterclaim Defendant CBS Studios Inc. (“CBS

Studios”) is a Delaware corporation with its principal place of business at 51 West 52nd Street,
New York, New York. CBS Studios is actively engaged in the worldwide production and
distribution of copyrighted entertainment products, including programs that television broadcast
stations and other media outlets transmit or retransmit to the public.
24.

On information and belief, Counterclaim Defendant Gannett Co., Inc. (“Gannett”)

is a Delaware corporation with its principal place of business at 7950 Jones Branch Drive,
McLean, Virginia. Gannett’s wholly owned subsidiary, Detroit Free Press, Inc. owns and
operates the television station WUSA, which is an FCC-licensed broadcast station that
broadcasts to viewers over-the-air on channel 9 in the Washington, D.C. market. WUSA is

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affiliated with the CBS Television Network. Gannett is actively engaged, among other things, in
the production and distribution of television programming and other copyrighted works,
including local news programming. Cable systems, satellite services and other multichannel
video programming distributors also make retransmissions of WUSA television broadcasts
available to their subscribers upon negotiating for the right to do so under Section 325 of the
Communications Act, 47 U.S.C. § 325.
GENERAL BACKGROUND
25.

The American public has the right to access free over-the-air broadcasting. The

United States Constitution recognizes this right through the First Amendment’s protection of
participation in the marketplace of ideas. 4-19E Nimmer on Copyright § 19E.02 (2012) (First
Amendment recognizes the public’s right to be informed of matters of general interest). Since
the enactment of the Radio Act of 1927, it has been a central tenet of American communications
policy that a license to use the valuable resource of the public airwaves carries with it the
obligation to operate in the public interest, convenience, and necessity. Pub. L. No. 69-169, 44
Stat. 1162 (1927); see also 47 U.S.C. § 303 (directing the Federal Radio Commission to grant
licenses to the public airwaves in the “public convenience, interest, or necessity.”).
26.

The Networks use, for free, a resource worth billions of dollars (or more)1 – the

public radio spectrum. Pursuant to the Communications Act of 1934, the Networks are granted

1

Economist Thomas Hazlett has explained that "Today, the social opportunity cost of
using the TV Band for television broadcasting - 294 MHz of spectrum with excellent
propagation characteristics for mobile voice and data networks, including 4G technologies is conservatively estimated to exceed $1 trillion (in present value)." Comment of Thomas
Hazlett, in A National Broadband Plan for Our Future, GN Dckt. No. 09-51, Federal
Communications Commission (filed Dec. 18. 2009), available at http://mason.gmu.edu/thazlett/pubs/NBP_PublicNotice26_DTVBand.pdf.

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licenses to operate only if the "public convenience, interest, or necessity will be served thereby."
47 U.S.C. § 307(a). They are required to serve the needs and interests of the communities to
which they are licensed. If a broadcaster fails to meet its public obligations, the Federal
Communications Commission can decline to renew its license. 47 U.S.C. § 309(k).
27.

As over-the-air broadcasters, the Networks also receive special statutory rights,

including: the right to demand carriage by cable systems, 47 U.S.C. § 534; guaranteed
placement on the "basic tier," 47 U.S.C. § 543(b)(8); and the legal right to "consent" to the
retransmission by cable systems of programming they may not own the copyright to, 47 U.S.C. §
325(b). In exchange for these rights – and in recognition of the fact that the number of
broadcast licenses is limited – the Networks have an obligation to serve the public. Red Lion
Broad. Co. v. FCC, 395 U.S. 367 (1969) (citing S. Rep. No. 86-562, at 8-9 (1959)) ("[B]roadcast
frequencies are limited and, therefore, they have been necessarily considered a public trust.").
28.

Since the earliest days of broadcasting, policymakers have required stations to

make their service freely available to the public. Id. at 390; see also Third Annual Report of the
Federal Radio Commission 34 (1929), available at http://transition.fcc.gov/fccbin/assemble?docno=291101. The Supreme Court has also held that "preserving the benefits
of free, over-the-air local broadcast television" is an important government interest. Turner
Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997).

More conservatively, CTIA - The Wireless Association and the Consumer
Electronics Association have concluded that the FCC's broadcast incentive auctions, where
only a few broadcasters would give up their licenses to more productive uses, could
produce more than $33 billion in revenue for the U.S. Treasury. See CTIA and CEA Study
Finds Broadcast Incentive Auction Will Net U.S. Treasury More Than $33 Billion, Feb. 15,
2011, http://www.ctia.org/media/press/body.cfm/prid/2051.

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29.

FilmOn X sought to serve this important government interest by providing a

unique technology that allows consumers access to their own remotely located antenna, thereby
enabling those consumers to create and access, from any Internet-enabled device, unique copies
of the same free-to-air broadcast programming that they would have been able to access freely
with a traditional “rabbit ears” antenna. Consumers can record and play-back unique copies of
the free-to-air broadcast programming at a later time, just as they could with a traditional DVR.
The commercial programming being broadcast over the local signal is not interrupted in any way
while the broadcast is streaming. Thus, the technology merely enhances how customers may
watch over-the-air broadcast content, which the Networks must provide for free in accordance
with the public interest recognized by the FCC, Congress and the Supreme Court. Attempts to
limit that ability such as the Networks’ lawsuits against Aereo and FilmOn X hardly comport
with the Networks' obligation to serve the public. As Justice Warren Burger lamented:
A broadcaster seeks and is granted the free and exclusive use of a limited and valuable
part of the public domain; when he accepts that franchise it is burdened by enforceable
public obligations . . . [T]he broadcast industry does not seem to have grasped the simple
fact that a broadcast license is a public trust.
Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1003 (D.C. Cir.
1966).
30.

The importance of making broadcast programming more accessible by creating

more choices for private viewing technologies was recently reasserted by the Department of
Justice. In approving the merger of Comcast and NBC Universal in 2011, the Department
required the merged companies to make programming available to Internet video services. This
requirement, the Department concluded, would give television viewers more choices of how to

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receive programming, as well as greater access to the programming itself. See Competitive
Impact Statement of the Department of Justice at 10-11, United States v. Comcast Corp., 1:11cv-00106, (D.C. Cir. Jan. 18, 2011) (“DoJ Analysis”) (available at
http://www.justice.gov/atr/cases/f266100/266158.pdf). The Department also found that
competitive pressures from online video distributors (“OVDs”) like FilmOn X were stimulating
incumbents such as cable networks to offer more on-demand choices, further enhancing
consumer choice. DoJ Analysis at 15. The Department observed that, among OVDs, “[n]ew
developments, products, and models are announced on almost a daily basis by companies
seeking to satisfy consumer demand.” DoJ Analysis at 15-16.
31.

Similarly, the FCC stated that OVDs “can provide and promote more

programming choice, viewing flexibility, technological innovation and lower prices.” See In the
Matter of Applications of Comcast Corporation, General Electric Company and NBC Universal,
Inc. for Consent to Assign Licenses and Transfer Control of Licensees, Memorandum Opinion &
Order, 26 FCC Rcd. 4238 ¶ 78 (2011) (“FCC Analysis”) (available at http://hraunfoss.fcc.gov/
edocs_public/attachmatch/FCC-11-4A1.pdf). Preventing more OVDs from reaching the market
would therefore “have a substantial anticompetitive effect on consumers and the market.” DoJ
Analysis at 27. Despite their currently-small market share, the Justice Department found that the
emergence and growth of OVDs was extremely significant, saying that OVDs “represent the
most likely prospect for successful competitive entry in the existing video programming
distribution market.” DoJ Analysis at 28. This analysis reaffirms the recognized and significant
public benefit of increased competition in video distribution.

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THE NETWORKS ACT AGAINST THE PUBLIC INTEREST
32.

The context in which the FCC made the statements noted above was the contested

merger of NBC and Comcast. The merger was ultimately allowed, but only in return for NBC
agreeing to meet in good faith and negotiate with OVDs. Defendant FilmOn is one such OVD.
Pursuant to the government’s mandate, FilmOn contacted NBC to arrange such a good faith
meeting to acquire NBC-owned content for its OVD service. In return, NBC agreed to meet with
FilmOn’s CEO, Alki David. The meeting occurred, with several lawyers and executives from
both sides present. At the meeting, Mr. David asked NBC what titles it was willing to sell to
FilmOn. NBC’s executives responded by saying they would only be willing to sell FilmOn one
particular program from the dawn of television that is essentially worthless at present day, for a
cost of $500,000.00 per year. Recognizing this to be an obvious non-offer (no one would ever
pay market premium rates for such an aged title), Mr. David implored NBC to make FilmOn a
reasonable offer for legitimate content. It refused to do so.
33.

In addition, FilmOn.TV Networks recently entered into an agreement with Baby

TV, a Fox Entertainment Group Channel in Europe based out of the United Kingdom. On March
14, 2012, FilmOn.TV Networks announced the deal, and a representative of Baby TV/Fox
International Channels was quoted in a press release as saying, "It is important for the
development of our industry to explore all new distribution opportunities. Therefore we look
forward to making Baby TV available to families through FilmOn.” Likewise, Mr. David
expressed his excitement over working with a Fox-affiliated channel. Shortly after the March 14
announcement, Fox’s headquarters in the United States learned about the deal and immediately
intervened, forcing its European affiliate to renege on its commitment, even after the Baby TV
content was already up and running on www.filmon.com.

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34.

Counterclaim Defendant CBS has also acted against the public interest and, in

fact, brings its claims in this case with unclean hands. CBS’s subsidiary CBSI, through its
property CNET (cnet.com or download.com), has sold and distributed hundreds of millions of
copies of illegal file-sharing (or “P2P”) software (such as BitTorrent, Napster, Grokster and
Limewire) for massive profit for more than a decade, by inducing wide-scale copyright
infringement of musical works and television shows belonging to various Networks or their
subsidiaries. In fact, CBSI, through download.com and cnet.com, distributed practically all of
the copies of many of world’s most notorious P2P applications, including Limewire and others.
35.

CBSI’s promotion and distribution of P2P software did more than just induce and

encourage massive infringement of copyrighted works, but also had a myriad of additional
negative social consequences. For example, the software CBSI distributed was used to construct
massive file-sharing networks that traded all manner of obscene, pornographic and illegal files –
including but not limited to child pornography.2
THE NETWORKS’ STRATEGIC LITIGATION AGAINST THE PUBLIC
INTEREST
36.

The Networks have furthered their anti-competitive aims by bringing lawsuits

against FilmOn X, as well as another Internet technology service, Aereo, in multiple
jurisdictions. The Networks first brought suit against Aereo in March 2012 in the District Court
for the Southern District of New York (“the Consolidated 2012 Actions”), alleging that Aereo
2

There is no doubt that Defendants knew about the amount of indecent materials available on
P2P networks: they reported on it. By way of one example, an article on the ZDNet website on
July 28, 2003 by Lisa Bowman, referenced a finding in a report authored by the United States
General Accounting Office and the House Government Reform Committee that “typing in words
such as ‘underage’ or ‘pre-teen’ [to P2P software] yielded numerous images of child porn.” The
article also noted that the same report found that file-blocking software “did not do enough” to
filter out porn files. The article described proposed legislation that called on the FTC to require
P2P companies to get permission before minors use their services.

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violated the Networks’ asserted public performance and reproduction rights under the Copyright
Act by providing to consumers certain remote antenna and digital video recorder (“DVR”)
technology so that the consumer could access, record, and play back over-the-air broadcasts
made freely available to the public. The Networks moved for a preliminary injunction against
Aereo in the Second Circuit, but the District Court denied the motion because it found that the
Networks were unlikely to succeed on the merits of their claims. Am. Broad. Cos., Inc. v. Aereo,
874 F. Supp. 373 (S.D.N.Y. 20012).
37.

Following the denial of a preliminary injunction by the district court in the

Consolidated 2012 Actions, the Networks brought a similar suit against FilmOn X, alleging
copyright infringement, in the District Court for the Central District of California in August
2013. The District Court erroneously found against FilmOn X, finding that the transmissions
consumers make using FilmOn X’s technology constitute public performances, and enjoined
FilmOn X from operating its service in the Ninth Circuit. This ruling – the scope of which is
specifically limited to the geographic boundaries of the Ninth Circuit – is currently being
appealed in the Ninth Circuit.
38.

A number of respected technology-related organizations filed amicus briefs in the

Second Circuit and the Ninth Circuit appeal in support of Aereo and FilmOn X, respectively.
For example, the Electronic Frontier Foundation (“EFF”), which is a member-supported nonprofit dedicated to protecting civil liberties and free expression in the digital age, filed an amicus
brief in support of FilmOn X likening its service to “new technologies like the VCR and DVR
[which] created new markets for film and television,” adding that FilmOn X and similar services
and technology “have the potential to revitalize broadcast TV as a major distribution medium to
compete with cable and satellite, and with non-broadcast programming.”

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39.

By way of further example, the amicus brief of the Computer & Communications

Industry Association (“CCIA”) – which includes numerous member companies residing in the
Ninth Circuit, such as Google, Yahoo!, Facebook, Ebay, and Pandora, for example – notes that
the district court’s reasoning in granting the injunctions “would not only put consumers ‘timeshifting’ and ‘space-shifting’ television [i.e., DVR technology] in jeopardy, but also inhibit
innovation by cloud providers intent on giving consumers ubiquitous online access to digital
assets that have nothing to do with television.” The CCIA explained:
[T]he District Court’s ruling imperils new digital locker services, as well as cloud-based
personal back-up services, all of which are premised on a user transferring her personal
files (including lawfully acquired music, video, text, and software files) to ‘the cloud,’
thereby making those files accessible to that same user from any Internet-connected
device.
Indeed, any ruling that FilmOn X’s technology is infringing would be a substantial set back to
innovation in the emerging field of cloud computing.
40.

On April 1, 2013, during the pendency of FilmOn X’s Ninth Circuit appeal, the

Second Circuit Court of Appeals affirmed the district court’s decision in favor of Aereo. WNET,
Thirteen v. Aereo, Inc., Nos. 12-Civ-2786, 12-Civ-2807, 2013 WL 1285591, at *1 (2d Cir. Apr.
1, 2013).
41.

Despite losing their preliminary injunction motion against Aereo in the 2012

Consolidated Actions (and later having that denial affirmed by the Second Circuit Court of
Appeals), and notwithstanding the pendency of FilmOn X’s appeal in the Ninth Circuit, the
Networks continue to threaten Aereo and FilmOn X with follow-on suits, attempting to get
another “bite at the apple” in different jurisdictions. For example, in response to the public

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announcement made by Aereo on April 23, 2013 that it planned to launch its technology in
Boston, Massachusetts on May 15, 2013, Leslie Moonves, the President and Chief Executive
Officer of CBS Broadcasting – one of the Plaintiffs in the 2012 Consolidated Actions –
reportedly stated in a press release that wherever Aereo expands from its first market in New
York, “we’ll follow” Aereo and “we’ll sue them again” in those markets. Similarly, Dana
McClintock, CBS Broadcasting’s Executive Vice President of Communications, stated on his
Twitter feed that “We will sue” in Boston, and that “Stealing our signal will be found to be
illegal in Boston, just as it will be everywhere else.”
42.

This action against Counterclaim Plaintiffs, filed on May 24, 2013, alleges near-

identical copyright infringement claims against Counterclaim Plaintiffs and seeks injunctive
relief and damages.
43.

In light of the explicit threats by CBS to initiate duplicative follow-on suits

against Aereo in other jurisdictions, and in view of the present action taken by the Networks
against FilmOn X in the District Court for the District of Columbia, FilmOn X files this related
action seeking a declaratory judgment as set forth below.
COUNT I (Request for Declaratory Judgment)
44.

Counterclaim Plaintiffs incorporate paragraphs 1-43, as if set forth fully herein.

45.

In light of Counterclaim Defendants’ Complaint, there exists an actual and

justiciable controversy concerning whether FilmOn X infringes Counterclaim Defendants’
copyrights by providing technology that allows consumers to receive free over-the-air broadcast
signals via the Internet, which those consumers are entitled to receive and which broadcasters are
required to transmit under statutory obligations.
WHEREFORE, Counterclaim Plaintiffs pray for relief as follows:

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1.

That the Court enter judgment in Counterclaim Plaintiffs’ favor and against
Counterclaim Defendants declaring that Counterclaim Plaintiffs have not violated
the Copyright Act with respect to any of the Counterclaim Defendants’
copyrighted works.

2.

That the Complaint be dismissed, with prejudice and in its entirety;

3.

That Counterclaim Plaintiffs be awarded costs incurred in defending this action;

4.

That Counterclaim Plaintiffs be granted such other and further relief as the Court

may deem just and proper.

June 27, 2013

Respectfully submitted,

By: /s/ Jaime W. Marquart
Jaime W. Marquart
BAKER MARQUART LLP
10990 Wilshire Blvd., Fourth Floor
Los Angeles, California 90024
[phone] (telephone)
[phone] (facsimile)
California Bar No.: 200344
/s/ Kerry J. Davidson
LAW OFFICE OF KERRY J. DAVIDSON
1738 Elton Road, Suite 113
Silver Spring, Maryland 20903
[phone] (telephone)
[phone](facsimile)
D.C. 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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