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

FOX TELEVISION STATIONS, INC., et a1.

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

Plaintiffs & CounterDefendants,
v.
AEREOKILLER LLC, et a1.
Defendants & CounterPlaintiffs.

DECLARATION OF DANIEL M. KUMMER
I, Daniel M. Kummer, declare as follows:

1.

I am employed by NBCUniversal Media, LLC ("NBCUniversal") as Vice

President, Litigation & Content Protection.

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
NBCUniversal's books and records, and/or on infonnation provided to me in my capacity as
Vice President, Litigation & Content Protection, at NBCUniversal. If called as a witness, I will
provide

C"""HU'-'H

re2:arClmg the

matter

2013, and May 29,2013. I am informed and believe that the programs in which NBC Subsidiary
(WRC-TV) LLC holds the copyrights were broadcast on the NBC Network Station WRC-TV in
Washington D.C., and the program in which Telemundo Network Group LLC holds the
copyright was broadcast on Telemundo station WNJU-TV in New York, as well as on other
stations affiliated with the Telemundo Network.

5.

Attached hereto as Exhibit 2 are true and correct copies of notices that I sent to

defendants in care of their counsel on May 23,2013, 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 of NBC Subsidiary (WRC-TV) LLC's and Telemundo Network Group LLC's intent to
register copyrights for that programming.

6.

NBC Subsidiary (WRC-TV) LLC and Telemundo Network Group LLC have

submitted applications to register their copyrights in the programming listed in Exhibit 1, and
have sent the requisite deposit copies of the relevant works to the Copyright Office. True and
correct copies of those applications are attached hereto as Exhibit 3.

7.

NBC Subsidiary (WRC-TV) LLC and Telemundo Network Group LLC have not

licensed to any of the defendants the right to publicly display or perform, distribute or reproduce

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

day ofJuly, 2013 at New York, New York.

Daniel M. Kummer

EXHIBIT 1

No.

Program Title

Broadcast Date

Copyright Owner

Application
Number

1.

News4 at 11pm 5/27/2013

5/27/2013

NBC Subsidiary
(WRC-TV) LLC

1-963282941

2.

News4 at 11pm 5/28/2013

5/28/2013

NBC Subsidiary
(WRC-TV) LLC

1-963283069

3.

Al Rojo Vivo 5/29/2013

5/29/2013

Telemundo Network
Group LLC

1-963283104

Exhibit 1 (Kummer).docx

EXHIBIT 2

30 Rockefeller Plaza
New York, NY 10112-0002

Dan~1 M. Kummer
Vice President. Litigation
5< Content Protection
law Department

May 23, 2013

[phone] Tel
[phone] Fax
[e-mail]

NBCUniversal

VIA FIRST CLASS MAIL and EMAIL
To: Aereokiller LLC
400 E. 58th Street, Apt. 8B
New York, NY 10022
FilmOn.tv, Inc.
FilmOn.tv Networks, Inc.,
FilmOn.Com, Inc.
301 N. Canon Drive
Beverly Hills, CA 90210
[e-mail].
c/o Jaime W. Marquart, Esq.
10990 Wilshire Blvd., 4th Floor
Los Angeles, CA 90024
;marguart(a),bakermarguart.com

ADVANCE NOTICE OF POTENTIAL INFRINGEMENT
On behalf of NBC Subsidiary (WRC-TV) LLC ("Owner") we submit this 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).
Owner owns and operates the television station identified by the call letters WRC, the
signal of which is broadcast to viewers over-the-air on channel 4 in the Washington, D.C.
market. Next week, WRC will telecast the following programs:
Program
News4 at 11pm
News4 at I1pm

Date
May 27, 2013
May 28, 2013

Time (Eastern Standard Time)
11 :00 p.m. - 11 :30 p.m.
11 :00 p.m. - 11 :30 p.m.

Each telecast will be a copyrighted work consisting of sounds and images, the first
fixation of which will be made simultaneously with its transmission. Owner, which will be
considered the author of these works upon their fixation, intends to secure a copyright in

Aereokiller LLC et aI.
May 23, 2013
Page 2

these telecasts upon their fixation and to file an application for copyright registration in such
telecasts within three months of their first transmission.
Your transmission of these telecasts to subscribers and users of the Aereokiller
retransmission service, from the website located at w\vw.filmon.com or any other website
owned or controlled by you would, if carried out, result in an infringement of the copyright
in such telecasts. Owner objects to such activities which, if carried out, would subject you to
liability for copyright infringement. In view of this notice, such infringement would be
willful.
Tbis notice does not purport to be a full or complete statement of the facts or the law
and is without prejudice to any rights, claims and remedies available to Owner, whether legal
or equitable in nature, all of which are expressly reserved.
Very truly yours,

~/l.;: ~/
Daniel M. Kummer
Attorney for Owner

.

r--

30 Rockefeller Plaza
New York, NY 10112-0002

Daniel M. Kummer

Vice President, Litigation
& Content Protection
Law Department

[phone] Tel
[phone] Fax
[e-mail]

May 23, 2013

NBCUniversal
VIA FIRST CLASS MAIL and EMAIL
To: Aereokiller LLC
400 E. 58th Street, Apt. 8B
New York, NY 10022
FilmOn.tv, Inc.
FilmOn.tv Networks, Inc.,
FilmOn.Com, Inc.
301 N. Canon Drive
Beverly Hills, CA 90210
[e-mail].
c/o Jaime W. Marquart, Esq.
10990 Wilshire Blvd., 4th Floor
Los Angeles, CA 90024
[e-mail]
ADVANCE NOTICE OF POTENTIAL INFRINGEMENT
Telemundo Network Group LLC (the "Owner") hereby submits this 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 ofthe Copyright Office's regulations, 37
C.F.R. § 201.22 (2009).
The Federal Communications Commission has licensed WNJU-TV Broadcasting LLC,
an affiliate of Owner, to operate the television station identified by the call letters WNJU, the
signal of which is broadcast to viewers over-the-air on channel 47 in the New York City market.
Next week, WNJU (and other television stations affiliated with Owner) will telecast the
following programs owned by Owner (among others):
Program
Al Rojo Vivo
Al Rojo Vivo

Date
May 29, 2013
May 30,2013

Time (Eastern Daylight)
5:00 p.m. - 6:00 p.m.
5:00 p.m. - 6:00 p.m.

Each telecast will be a copyrighted work consisting of sounds and images, the tirst
fixation of which will be made simultaneously with its transmission. The Owner, which will be
considered the author of these works upon their fixation, 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 transmission of these telecasts to subscribers and users of the Aereokiller
retransmission service, from the website located at www.filmon.com or any other website or
service owned or controlled by you would, if carried out, result in an infringement of the
copyright in such telecasts. The Owner objects to such activities which, if carried out, would
subject you to liability for copyright infringement. In view of this notice, such infringement
would be willful.
This notice does not purport to be a full or complete statement of the facts or the law and
is without prejudice to any rights, claims and remedies available to the Owner, whether legal or
equitable in nature, aU of which are expressly reserved. Please contact the undersigned duly
authorized agent of the Owner if you have any questions about this notice.

-

Very truly yours,

,

~~A ~~
Daniel M. Kummer
Attorney for Owner

.

~

EXHIBIT 3

*-APPLICATION-*

Title
Title of Work: News4 at 11pm 5/27/2013

Completion/Publication
Year of Completion: 2013
Date of 1st Publication: May 27, 2013

Nation of 1st Publication: United States

Author
Author: NBC Subsidiary (WRC-TV) LLC
Author Created: entire motion picture
Work made for hire: Yes
Citizen of: United States

Domiciled in: United States

Copyright claimant
Copyright Claimant: NBC Subsidiary (WRC-TV) LLC
4001 Nebraska Ave., NW, Washington, DC, 20016, United States

Limitation of copyright claim
Material excluded from this claim: commercials
New material included in claim: all other cinematographic material

Rights and Permissions
Organization Name: NBC Subsidiary (WRC-TV) LLC
Address: 4001 Nebraska Ave., NW
Washington, DC 20016 United States

Certification
Name: Jonathan Coronel
Date: July 12, 2013

Page 1 of 1

IPN#:

Registration #:
Service Request #: 1-963282941
Priority: Routine

Application Date: July 12, 2013 07:18:15 PM

_____________________________________________

Correspondent

Organization Name: NBCUniversal Media, LLC
Name: Daniel M. Kummer
Email: [e-mail]
Address: 30 Rockefeller Plaza
Rm. 75-615N
New York, NY 10112 United States

Mail Certificate

__________________________________________

NBCUniversal Media, LLC
Daniel M. Kummer
30 Rockefeller Plaza
Rm. 75-615N
New York, NY 10112 United States

*-APPLICATION-*

Title
Title of Work: News4 at 11pm 5/28/2013

Completion/Publication
Year of Completion: 2013
Date of 1st Publication: May 28, 2013

Nation of 1st Publication: United States

Author
Author: NBC Subsidiary (WRC-TV) LLC
Author Created: entire motion picture
Work made for hire: Yes
Citizen of: United States

Domiciled in: United States

Copyright claimant
Copyright Claimant: NBC Subsidiary (WRC-TV) LLC
4001 Nebraska Ave., NW, Washington, DC, 20016, United States

Limitation of copyright claim
Material excluded from this claim: commercials
New material included in claim: all other cinematographic material

Rights and Permissions
Organization Name: NBC Subsidiary (WRC-TV) LLC
Address: 4001 Nebraska Ave., NW
Washington, DC 20016 United States

Certification
Name: Jonathan Coronel
Date: July 12, 2013

Page 1 of 1

IPN#:

Registration #:
Service Request #: 1-963283069
Priority: Routine

Application Date: July 12, 2013 07:18:27 PM

_____________________________________________

Correspondent

Organization Name: NBCUniversal Media, LLC
Name: Daniel M. Kummer
Email: [e-mail]
Address: 30 Rockefeller Plaza
Rm. 75-615N
New York, NY 10112 United States

Mail Certificate

__________________________________________

NBCUniversal Media, LLC
Daniel M. Kummer
30 Rockefeller Plaza
Rm. 75-615N
New York, NY 10112 United States

*-APPLICATION-*

Title
Title of Work: Al Rojo Vivo 5/29/2013

Completion/Publication
Year of Completion: 2013
Date of 1st Publication: May 29, 2013

Nation of 1st Publication: United States

Author
Author: Telemundo Network Group LLC
Author Created: entire motion picture
Work made for hire: Yes
Citizen of: United States

Domiciled in: United States

Copyright claimant
Copyright Claimant: Telemundo Network Group LLC
2290 West 8th Ave., Hialeah, FL, 33010, United States

Limitation of copyright claim
Material excluded from this claim: commercials
New material included in claim: all other cinematographic material

Rights and Permissions
Organization Name: Telemundo Network Group LLC
Address: 2290 West 8th Ave.
Hialeah, FL 33010 United States

Certification
Name: Jonathan Coronel
Date: July 12, 2013

Page 1 of 1

IPN#:

Registration #:
Service Request #: 1-963283104
Priority: Routine

Application Date: July 12, 2013 07:18:38 PM

_____________________________________________

Correspondent

Organization Name: NBCUniversal Media, LLC
Name: Daniel M. Kummer
Email: [e-mail]
Address: 30 Rockefeller Plaza
Rm. 75-615N
New York, NY 10112 United States

Mail Certificate

__________________________________________

NBCUniversal Media, LLC
Daniel M. Kummer
30 Rockefeller Plaza
Rm. 75-615N
New York, NY 10112 United States