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

Filing 24

ANSWER to 13 COUNTERCLAIM by FOX BROADCASTING COMPANY, INC., FOX TELEVISION STATIONS, INC., TWENTIETH CENTURY FOX FILM CORPORATION. Related document: 13 COUNTERCLAIM filed by FILMON.COM, INC,, FILMON.TV NETWORKS, INC.,, FILMON.TV, INC., AEREOKILLER LLC,.(Smith, Paul)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
-----------------------------------------------x
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.,
Plaintiffs/Counter-Defendants,
v.
AEREOKILLER LLC, FILMON.TV
NETWORKS, INC., FILMON.TV,
INC., FILMON.COM, INC, and DOES
1 through 3, inclusive,
Defendants/Counter-Plaintiffs.
-----------------------------------------------x

2214553.3

Civil Action No. 13-cv-00758-RMC
FOX TELEVISION STATIONS,
INC., TWENTIETH CENTURY
FOX FILM CORPORATION, AND
FOX BROADCASTING
COMPANY’S ANSWER TO
AMENDED COUNTERCLAIM AND
AFFIRMATIVE DEFENSES

ANSWER TO COUNTERCLAIM
Plaintiffs Fox Television Stations, Inc. (“FTS”), Twentieth Century Fox
Film Corporation (“TCFFC”) and Fox Broadcasting Company (“FBC”)
(collectively, “Fox” or “Plaintiffs”) hereby answer the Amdended Counterclaim of
Defendants and Counterclaim Plaintiffs Aereokiller, LLC, FilmOn.TV Networks,
Inc., FilmOn.TV, Inc. and FilmOn.Com, Inc. (collectively, “Defendants” or
“FilmOnX”) (the “Counterclaim”), by paragraph, as follows. Plaintiffs deny all
allegations contained in the Counterclaim (including headings and captions) not
specifically admitted in this Answer.
1.

Fox denies the factual allegations in Paragraph 1 and alleges that

FilmOnX is a commercial service that illegally captures and retransmits Plaintiffs’
broadcast signals to FilmOnX users and subscribers over the Internet. FilmOnX’s
further arguments, opinions or legal conclusions in Paragraph 1 require no
response.
2.

In Paragraph 2, TCFFC and FTS admit that they “have already been

denied a preliminary injunction against Aereo[.]” FBC denies that is has been
denied a preliminary injunction against Aereo. Fox denies all other factual
allegations in Paragraph 2 and asserts that any arguments, opinions or legal
conclusions require no response.

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3.

In Paragraph 3, Fox admits that it has broadcast licenses and can

access broadcast frequencies. Fox otherwise denies all other factual allegations in
Paragraph 3 and asserts that any arguments, opinions or legal conclusions require
no response.
4.

Admit that the Court has jurisdiction.

5.

Admit that the Court has jurisdiction.

6.

Admit that venue is proper in this district.

7.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
8.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
9.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
10.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
11.

Fox admits the factual allegations in this paragraph.

12.

Fox admits the factual allegations in this paragraph.

13.

Fox admits the factual allegations in this paragraph.

14.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.

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15.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
16.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
17.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
18.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
19.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
20.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
21.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
22.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
23.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
24.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.

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25.

In answering Paragraph 25, Fox states that it contains arguments,

opinions and legal conclusions that require no response.
26.

In answering Paragraph 26 and the related footnote, Fox states that

they contain arguments, opinions and legal conclusions that require no response.
27.

Fox admits that FTS receives “the right to demand carriage by cable

systems, 47 U.S.C. § 534; [is] guaranteed placement on the ‘basic tier,’ 47 U.S.C.
§ 543(b)(8); and [has] the legal right to ‘consent’ to the retransmission by cable
systems of programming [it] may not own the copyright to, 47 U.S.C. § 325(b).”
Fox otherwise states that this paragraph contains arguments, opinions and legal
conclusions that require no response.
28.

In answering Paragraph 28, Fox states that it contains arguments,

opinions and legal conclusions that require no response.
29.

In answering Paragraph 29, to the extent it asserts factual allegations

about how FilmOnX’s technology functions, Fox is without sufficient knowledge
or information to form a belief as to the truth of this paragraph. Fox otherwise
denies all other factual allegations in Paragraph 29 and asserts that any arguments,
opinions or legal conclusions require no response.
30.

In answering Paragraph 30, Fox states that it contains arguments,

opinions and legal conclusions that require no response.

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31.

In answering Paragraph 31, Fox states that it contains arguments,

opinions and legal conclusions that require no response.
32.

As the majority of the purported factual allegations in Paragraph 32

pertain to NBC and Comcast, not to Fox, Fox is without sufficient knowledge or
information to form a belief as to the truth of those parts of this paragraph. Fox
otherwise denies all the other factual allegations in Paragraph 32 and states that
Paragraph 32 contains arguments, opinions and legal conclusions that require no
response.
33.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
34.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph.
35.

Fox is without sufficient knowledge or information to form a belief as

to the truth of this paragraph or the related footnote.
36.

Fox admits that FTS and TCFFC, along with other various parties,

“brought suit against Aereo in March 2012 in the District Court for the Southern
District of New York” and that they alleged “that Aereo violated [their] asserted
public performance and reproduction rights under the Copyright Act[.]” Fox also
admits that FTS and TCFFC, along with other various parties, “moved for a
preliminary injunction against Aereo” and admits that “the District Court denied

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the motion” in Am. Broad. Cos., Inc. v. Aereo, 874 F. Supp. 2d 373 (S.D.N.Y.
2012).” Fox otherwise denies all the other factual allegations in Paragraph 36 and
states that Paragraph 36 contains arguments, opinions and legal conclusions that
require no response.
37.

Fox admits that FTS, TCFFC and FBC, along with other various

parties, brought a suit against FilmOn X, alleging copyright infringement, in the
District Court for the Central District of California in August 2012. Fox also
admits that the District Court for the Central District of California found against
FilmOnX and granted a preliminary injunction against FilmOnX, which is limited
to the geographic boundaries of the Ninth Circuit and is currently being appealed
in the Ninth Circuit. With respect to FilmOnX’s other characterizations of the
Court’s Order, Fox states that the Court’s Order is the best evidence of the Court’s
reasoning and ruling and therefore defers to the language contained within that
Order. Fox otherwise denies all the other factual allegations in Paragraph 37 and
states that Paragraph 37 contains arguments, opinions and legal conclusions that
require no response.
38.

Fox admits that “organizations filed amicus briefs in the Second

Circuit and the Ninth Circuit appeal in support of Aereo and FilmOn X,
respectively.” Fox is otherwise without sufficient knowledge or information to
form a belief as to the truth of parts of this paragraph, denies all the other factual

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2214553.3

allegations in this paragraph, and to the extent that this paragraph contains
arguments, opinions and legal conclusions, they require no response.
39.

Fox is without sufficient knowledge or information to form a belief as

to the truth of parts of this paragraph, and states that this paragraph contains
arguments, opinions and legal conclusions that require no response.
40.

Fox admits that a split panel of the Second Circuit affirmed the district

court’s denial of a preliminary injunction in the Aereo case, with a dissent filed by
The Honorable Denny Chin.
41.

As the majority of the purported factual allegations in Paragraph 41

pertain to CBS, and not to Fox, Fox is without sufficient knowledge or information
to form a belief as to the truth of parts of this paragraph. Fox denies all the other
factual allegations in Paragraph 41 and states that Paragraph 41 contains
arguments, opinions and legal conclusions that require no response.
42.

Fox admits that its complaint against Defendants alleges copyright

infringement claims and seeks injunctive relief and damages. Fox denies all other
factual allegations in Paragraph 42.
43.

As the majority of the purported factual allegations in Paragraph 43.

pertain to CBS, and not to Fox, Fox is without sufficient knowledge or information
to form a belief as to the truth of parts of this paragraph. Fox denies all the other

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factual allegations in Paragraph 43 and states that Paragraph 43 contains
arguments, opinions and legal conclusions that require no response.
44.

Fox incorporates paragraphs 1-43 as if set forth fully herein.

45.

Fox admits that it contends FilmOnX is engaged in copyright

infringement. Fox otherwise states that Paragraph 45 contains arguments, opinions
and legal conclusions that require no response.

PRAYER
Wherefore, Fox prays as follows:
1.

That Defendants take nothing by reason of their Counterclaim, and

that judgment be rendered in favor of Fox;
2.

That Fox be awarded its costs of suit incurred in defense of

Defendants’ Counterclaim, including, but not limited to, Fox’s attorneys’ fees; and
3.

For such other relief as the Court may deem just and proper.

AFFIRMATIVE DEFENSES
Pursuant to Rule 8(c) of the Federal rules of Civil Procedure, Fox further
pleads the following separate and additional defenses. By pleading these defenses,
Fox does not in any way agree or concede that it has the burden of proof or

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persuasion on any of these issues. Fox reserves the right to assert such additional
affirmative defenses as discovery indicates are proper.
FIRST AFFIRMATIVE DEFENSE
(Failure to State A Claim)
The Counterclaim fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
(Estoppel)
The Counterclaim is barred, in whole or in part, based on the principles of
estoppel.
THIRD AFFIRMATIVE DEFENSE
(Laches)
The Counterclaim is barred, in whole or in part, based on the principles of
laches.
FOURTH AFFIRMATIVE DEFENSE
(Failure to State A Claim)
The Counterclaim is barred, in whole or in part, based on the principles of
unclean hands.
FIFTH AFFIRMATIVE DEFENSE
(Waiver)
The Counterclaim is barred, in whole or in part, by the doctrine of waiver.

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ADDITIONAL AFFIRMATIVE DEFENSES
(Subsequently Discovered Defense)
Fox 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.
Dated: July 18, 2013

Respectfully submitted
By: /s/ Paul M. Smith
JENNER & BLOCK LLP
Paul M. Smith (D.C. Bar No. 358870)
[e-mail]
1099 New York Avenue NW
Suite 900
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Richard L. Stone (admitted pro hac vice)
[e-mail]
Julie A. Shepard (admitted pro hac vice)
[e-mail]
Amy M. Gallegos (pro hac vice application to be
filed)
[e-mail]
633 West 5th Street, Suite 3600
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Fox Television Stations,
Inc., Twentieth Century Fox Film Corp., and Fox
Broadcasting Company

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