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

Filing 27

Joint MOTION for Preliminary Injunction by ALLBRITTON COMMUNICATIONS COMPANY, AMERICAN BROADCASTING COMPANIES, INC., CBS BROADCASTING, INC., CBS STUDIOS, DISNEY ENTERPRISES, INC., FOX BROADCASTING COMPANY, INC., FOX TELEVISION STATIONS, INC., GANNETT CO., INC., NBC STUDIOS LLC, NBC SUBSIDIARY (WRC-TV), LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, TELEMUNDO NETWORK GROUP LLC,, TWENTIETH CENTURY FOX FILM CORPORATION, UNIVERSAL NETWORK TELEVISION LLC (Attachments: # 1 Memorandum in Support, # 2 Appendix, # 3 Declaration of Julie Shepard, # 4 Declaration of Sherry Brennan, # 5 Declaration of Samuel Bahun Part 1 of 5, # 6 Declaration of Samuel Bahun Part 2 of 5, # 7 Declaration of Samuel Bahun Part 3 of 5, # 8 Declaration of Samuel Bahun Part 4 of 5, # 9 Declaration of Samuel Bahun Part 5 of 5, # 10 Declaration of Barbara Wall, # 11 Declaration of Carly Seabrook, # 12 Declaration of Daniel Kummer, # 13 Declaration of Marsha Reed, # 14 Declaration of Rebecca Borden, # 15 Declaration of William Lord, # 16 Text of Proposed Order)(Smith, Paul). Added MOTION for Hearing on 8/2/2013 (rdj).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Case No. 1:13-cv-00758 (RMC)

FOX TELEVISION STATIONS, INC., et al.
Plaintiffs & CounterDefendants,
v.
AEREOKILLER LLC, et al.
Defendants & CounterPlaintiffs.

DECLARATION OF BARBARA W. WALL
I, Barbara W. Wall, declare as follows:

1.

I am a Vice President and Senior Associate General Counsel of Gannett Co., Inc.

(“Gannett”).

2.

I submit this declaration in support of Plaintiffs’ Motion for Preliminary

Injunction. This declaration is based on my own personal knowledge, my review of Gannett’s
books and records, or on information provided to me in my capacity as Vice President and
Senior Associate General Counsel of Gannett. If called as a witness, I will provide testimony
regarding the subject matter addressed in this declaration.

3.

Gannett’s wholly owned subsidiary, Detroit Free Press, Inc., owns and operates

the television station WUSA-TV, which is an FCC-licensed broadcast station that broadcasts to
viewers over-the-air on channel 9 in the Washington, D.C. market. WUSA-TV is affiliated with
the CBS Television Network.

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4.

Gannett is actively engaged, among other things, in the production and

distribution of television programming and other copyrighted works, including local news
programming.

5.

Attached hereto as Exhibit 1 is a true and correct copy of a non-exhaustive list of

television programs in which Gannett holds the copyrights, which I am informed and believe
were broadcast on the WUSA-TV television channel on May 28, 2013, and May 29, 2013. It is
my understanding that other episodes of television programs in which Gannett holds the
copyright have been aired on WUSA-TV (as original or repeat airings) at various times between
May 28, 2013, and the present.

6.

Attached hereto as Exhibit 2 is a true and correct copy of a notice that I sent to

defendants’ counsel, which informed defendants, pursuant to Section 411(c) of United States
Copyright Act and Section 201.22 of the Copyright Office’s regulations, of their potential
copyright infringement related to the programming listed in Exhibit 1 and Gannett’s intent to
secure a copyright in that programming.

7.

Attached hereto as Exhibit 3 are true and correct copies of the copyright

registrations for the works listed in Exhibit 1. These registrations are maintained by Gannett in
the ordinary course of business.

8.

Gannett has not licensed to any of the Defendants the right to publicly display or

perform, distribute or reproduce copies of any of its television programs or other works in which

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they own the copyrights, including those works listed in Exhibit 1.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed this

2- Gi

day

O~, 2013 at McLean, Virginia.

~~
Barbara W. Wall

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EXHIBIT 1

No.

Program Title

Broadcast Date

Copyright Owner

Registration

1.

WUSA 9 News at 6 pm
5/28/2013

5/28/2013

Gannett Co., Inc.

PA 1­846­483

2.

WUSA 9 News at 6 pm
5/29/2013

5/29/2013

Gannett Co., Inc.

PA 1­846­485

33546636v1

EXHIBIT 2

GANNETT

Barbara W. Wall
Vice President,
Senior Associate
General Counsel

May 24, 2013

VIA FIRST CLASS MAIL RETURN RECEIPT REOUESTED
AND EMAIL: [e-mail]
Aereokiller LLC
400 E. 58 th Street, Apt. 8B
New York, NY 10022
FilmOn.TV, Inc.
FilmOn.TV Network, Inc.
FilmOn.com, Inc.
301 N. Canon Drive
Beverl y Hills, CA 90210
c/o Jaime W. Marquart
10990 Wilshire Blvd, Fourth Floor
Los Angeles, CA 90024
[e-mail]
RE:

ADVANCE NOTICE OF POTENTIAL INFRINGEMENT

On behalf of Gannett Co., Inc. ("Gannett"), we submit thi s advance notice of potential
infringement pursuant to Section 411 (c) (formerly 411(b» of the United States Copyright Act, 17
U.S.C. § 411(c), and Section 201.22 of the Copyright Office's regulations, 37 C.F. R. § 201.22
(2009).
The Federal Communications Commission has licensed Gannett, through its subsidiary
Detroit Free Press, Inc. to operate the television station identified by the call letters WUSA, the
signal of which is broadcast to viewers over-the-air in the Washington, DC metropolitan area.
WUSA will telecast the following programs:
Time fE.S.T.)

Program
WUSA 9 News at 6pm

May 28, 2013

6:00 p.m. - 6:30 p.m.

WUSA 9 News at 6pm

May 29, 2013

6:00 p.m. - 6:30 p.m.

Office: 703.854.695 1 . FAX: [phone]' bwall@gann ett.com
Gannett Co., Inc . . 7950 Jones Branch Drive· McLean, VA 22 107
91125

-2-

Each telecast will be a copyrighted work consisting of sounds and images, the first fixation of
which will be made simultaneously with its transmission. Gannett, the copyright claimant of these
works, intends to secure a copyright in these telecasts upon their fixation and to file an application
for copyright registration in such telecasts within three months of their first transmission.
Your streaming of these telecasts over the Internet to subscribers and users of the Aereokiller
retransmission service, including through the websites www.filmon.com, www.filmonx.com,
www.filmon.tv, and www.aereoki ller.com, or any other service owned or controlled by you, would,
if carried out, result in an infringement of the copyright in such telecasts. Gannett objects to such
activities that, if carried out, would subject you to liability for copyright infringement. In view of
this notice, such infringement would be willfu l.
This notice does not purport to be a full or complete statement of facts or the law and is
without prejudice to any rights, claims and remedies available to Gannett, whether legal or equitable
in nature, all of which are expressly reserved.

Very truly yours,

Barbara W. Wall

Office : 703 .854 .6951 . FAX: [phone] · [e-mail]
Gannett Co., Inc.. 7950 Jones Branch Drive · McLean, VA 22 107
9112 ,~

EXHIBIT 3