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 al.

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

Plaintiffs & CounterDefendants,

v.
AEREOKILLER LLC, et al.
Defendants & CounterPlaintiffs.

DECLARATION OF SAMUEL BAHUN
I, Samuel Bahun, declare as follows:

1.

I am the Director of Strategic Accounts for MarkMonitor Inc. ("MarkMonitor").

MarkMonitor offers comprehensive solutions and services that safeguard copyright owners'
reputations and revenues from online risks. As Director of Strategic Accounts for MarkMonitor,
I am responsible for managing the relationships and projects for many of MarkMonitor' s major
accounts. I have held that position since 2010. The facts contained herein are based on my
personal knowledge, my review of records and inquiry of appropriate MarkMonitor personnel.

If called as a witness, I will provide testimony regarding the subject matter addressed in this
declaration.

2.

Since May 7,2013, employees of MarkMonitor have regularly monitored the

content available in Washington D.C. on the www.filmon.com website. A MarkMonitor
employee utilized a computer that was physically located in Washington D.C. to access the
"local channels" category available on the www.filmon.com homepage. The employee then

clicked on links for every "local channel" that was labeled as an "ABC," "CBS," "NBC" and
"Telemundo" channel. After each of those channels was selected by MarkMonitor's employee,
an advertisement was displayed and then a television broadcast started to play in the video player
on the www.filmon.com website. For example, when the channel "ABC Washington" was
selected, an advertisement played and then the ABC station in Washington D.C., WJLA-TV,
began playing in the video player on the www.filmon.com website. Similarly, when the channel
"ABC 7 NY" was selected, an advertisement played and then the ABC station in New York,
WNBC-TV, began playing in the video player on the www.filmon.com website. Once the
advertisement was complete and the television programming started to play in the video player,
MarkMonitor's employee captured a static "screen shot" of the programming made available on
the www.filmon.com website in Washington D.C.

3.

In the course of MarkMonitor's monitoring the www.filmon.com website, I have

learned that WJLA-TV is the ABC affiliated television station for the Washington D.C.
metropolitan area and W ABC-TV is the ABC affiliated television station for the New York City
metropolitan area.

4.

Between May 7,2013 and May 29,2013 and June 10,2013 through the present,

MarkMonitor determined that WJLA-TV broadcasts were available for viewing to persons in
Washington D.C. that visited the www.filmon.com website. MarkMonitor documented the
availability of various WJLA-TV broadcasts on the www.filmon.com website in Washington
D.C. by capturing "screen shots" of those broadcasts. True and correct copies of "screen shots"
that MarkMonitor captured are attached hereto as Exhibit 1.

5.

Between May 7, 2013 and May 29,2013 and June 10,2013 through the present,

MarkMonitor determined that W ABC-TV broadcasts were available for viewing to persons in

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Washington D.C. that visited the www.filmon.com website. MarkMonitor documented the
availability of various W ABC-TV broadcasts on the www.filmon.com website in Washington
D.C. by capturing "screen shots" of those broadcasts. True and correct copies of "screen shots"
that MarkMonitor captured are attached hereto as Exhibit 2.

6.

In the course of MarkMonitor's monitoring the www.filmon.com website, I have

learned that WUSA-TV is the CBS affiliated television station for the Washington D.C.
metropolitan area and WCBS-TV is the CBS affiliated television station for the New York City
metropolitan area.

7.

Between May 7, 2013 and May 29,2013 and June 10,2013 through the present,

MarkMonitor determined that WUSA-TV broadcasts were available for viewing to persons in
Washington D.C. that visited the www.filmon.com website. MarkMonitor documented the
availability of various WUSA-TV broadcasts on the www.filmon.com website in Washington
D.C. by capturing "screen shots" of those broadcasts. True and correct copies of "screen shots"
that MarkMonitor captured are attached hereto as Exhibit 3.

8.

Between May 7,2013 and May 29, 2013 and June 10,2013 through the present,

MarkMonitor determined that WCBS-TV broadcasts were available for viewing to persons in
Washington D.C. that visited the www.filmon.com website. MarkMonitor documented the
availability of various WCBS-TV broadcasts on the www.filmon.com website in Washington
D.C. by capturing "screen shots" of those broadcasts. True and correct copies of "screen shots"
that MarkMonitor captured are attached hereto as Exhibit 4.

9.

In the course of MarkMonitor's monitoring the www.filmon.com website, I have

learned that WRC-TV is the NBC affiliated television station for the Washington D.C.

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metropolitan area and WNBC-TV is the NBC affiliated television station for the New York City
metropolitan area.

10.

Between May 7, 2013 and May 29,2013 and June 10,2013 through the present,

MarkMonitor determined that WRC-TV broadcasts were available for viewing to persons in
Washington D.C. that visited the www.filmon.com website. MarkMonitor documented the
availability of various WRC-TV broadcasts on the www.filmon.com website in Washington
D.C. by capturing "screen shots" of those broadcasts. True and correct copies of "screen shots"
that MarkMonitor captured are attached hereto as Exhibit 5.

11.

Between May 9, 2013 and May 29, 2013 and June 10, 2013 through the present,

MarkMonitor determined that WNBC-TV broadcasts were available for viewing to persons in
Washington D.C. that visited the www.filmon.com website. MarkMonitor documented the
availability of various WNBC-TV broadcasts on the www.filmon.com website in Washington
D.C. by capturing "screen shots" of those broadcasts. True and correct copies of "screen shots"
that MarkMonitor captured are attached hereto as Exhibit 6.

12.

Between May 15,2013 and May 29, 2013, MarkMonitor determined that

Telemundo NY broadcasts were available for viewing to persons in Washington D.C. that visited
the www.filmon.com website. MarkMonitor documented the availability of various Telemundo
NY broadcasts on the www.filmon.com website in Washington D.C. by capturing "screen shots"
of those broadcasts. True and correct copies of "screen shots" that MarkMonitor captured are
attached hereto as Exhibit 7.

13.

The screenshots of the www.filmon.com websites attached hereto as Exhibits 1 to

7 were taken by MarkMonitor employees who accessed the websites in the normal course of
their duties pursuant to standard MarkMonitor procedures.

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I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed this 10th day of July, 2013 at San Francisco, California.

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EXHIBIT 1