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

Filing 32

REPLY to opposition to motion re 27 Joint MOTION for Preliminary Injunction MOTION for Hearing filed 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 Response to Evidentiary Objections, # 2 Objections to Request for Judicial Notice)(Smith, Paul)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

Civil Action No. 1:13-cv-00758-RMC
Hon. Rosemary M. Collyer

FOX TELEVISION STATIONS, INC., et al.
Plaintiffs,
v.
FILMON X, LLC, et al.
Defendants.

PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ REQUEST
FOR JUDICIAL NOTICE
Plaintiffs1 respectfully submit their Objections to the Request for Judicial Notice (Dkt.
No. 31-4) filed by Defendants FilmOn X, LLC (f/k/a Aereokiller LLC), FilmOn.TV Networks,
Inc., FilmOn.TV, Inc., and FilmOn.com, Inc. (collectively “FilmOnX”) in connection with
FilmOnX’s opposition to Plaintiffs’ Motion for Preliminary Injunction (the “Request”). The
Court should deny the Request on the grounds that (i) the materials submitted are an improper
subject for judicial notice under Federal Rule of Evidence 201, and (ii) the Request is an
improper attempt to exceed the page limits on an opposition memorandum and to incorporate
arguments not properly before this Court.
FilmOnX asks the Court to take judicial notice of the filing of three amicus briefs in
another case -- the Ninth Circuit consolidated appeal docketed as Fox Television Stations, et al.
1

Plaintiffs are 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., CBS Broadcasting Inc., CBS
Studios Inc., Allbritton Communications Company, and Gannett Co., Inc.

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v. FilmOnX, LLC, et al., Case Nos. 13-55156, 13-55157, 13-55226, 13-55228 (the “Appeal”).
FilmOnX attached to the Request a copy of the docket in the Appeal, not the three amicus briefs
that are identified in the Request. FilmOnX contends that the materials at issue in the Request
show that “consumer and media advocacy groups filed amici briefs in support [sic] FilmOn X’s
appeal and/or reversal of the Central District of California’s grant of a preliminary injunction
against FilmOn X.” Request at 1. And, in its opposition memorandum (Dkt. No. 31), FilmOnX
cites to those materials as support for the otherwise unsupported contention that “[c]ommentators
and media advocacy groups have shown a strong interest in protecting broad and convenient
consumer access to media . . . .” Opp’n to Mot. for Prelim. Inj. 26.
The Court should deny FilmOnX’s request for judicial notice for two reasons. First,
FilmOnX is not really requesting that the Court take judicial notice of the mere fact that the
amicus briefs were filed but, rather, that the Court take judicial notice of the arguments allegedly
made in those briefs; this is evident from statements in FilmOnX’s opposition about the amicus
briefs. See, e.g., Opp’n to Mot. for Prelim. Inj. 26 (“Commentators and media advocacy groups
have shown a strong interest in protecting broad and convenient consumer access to media . . . .”)
Amici arguments are not a proper subject of judicial notice. Under Federal Rule of Evidence
201(b), a court may judicially notice a fact that is “not subject to reasonable dispute” when it
“can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Here, while it may be proper for the Court to take judicial notice of the fact that
amicus briefs were filed in the Appeal, the contents of those amicus briefs clearly are “not
subject to reasonable dispute,” and thus the Court may not take judicial notice of more than the
fact of filing. See Howard v. Gutierrez, 474 F. Supp. 2d 41, 52 n.5 (D.D.C. 2007) (“A court may
take judicial notice of a document filed in another court not for the truth of the matters asserted in

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the other litigation, but rather to establish the fact of such litigation and related filings.”) (quoting
Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006)); Mehle
v. Am. Mgmt. Sys., Inc., No. 01-7197, 2002 WL 31778773, at *1 (D.C. Cir. Dec. 4, 2002) (“The
court takes judicial notice of the existence of the documents [filed in another action], not the
accuracy of any legal or factual arguments made therein.”); accord Louis Vuitton Malletier, S.A.
v. Akanoc Solutions, Inc., 658 F.3d 936, 940 n.2 (9th Cir. 2011) (denying request for judicial
notice of amicus brief filed by the Electronic Frontier Foundation and others in a different
appeal); Kahue v. Pac. Envtl. Corp., 834 F. Supp. 2d 1039, 1054 (D. Haw. 2011) (refusing to
take judicial notice of amicus briefs in other actions because “Plaintiff . . . does not appear to rely
on the proffered legal briefs . . . for any ‘adjudicative facts’ contained therein; rather, they
support Plaintiff’s legal arguments.”).
Furthermore, the Appeal docket attached to the Request provides no information that
supports the contentions for which FilmOnX relies upon the Request -- including the nature of
any amicus party’s support, if any, for one side or the other. Thus, this Court would need to
review the content of the briefs themselves to determine they support FilmOnX in this case,
which is an improper use of judicial notice. See Fox Television Stations, Inc. v. BarryDriller
Content Sys., PLC, 915 F. Supp. 2d 1138, 1142 n.8 (C.D. Cal. 2012) (denying Defendants’
request for judicial notice of amicus briefs filed in other litigation, noting that “Defendants argue
that the very existence of the briefs shows that Defendants’ technology serves an important
public interest. [Citation omitted.] However, it is impossible to draw that conclusion without
examining the content of the proffered briefs”). The mere fact that amicus briefs were filed in
another action involving many of the same parties is irrelevant to the issues presently before this

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Court, and the Request can be denied on that basis. See Whiting v. AARP, 637 F.3d 355, 430
(D.C. Cir. 2011) (“[T]he matters to be noticed must be relevant . . . .”).
Second, to the extent that FilmOnX’s seeks to have this Court examine the contents of the
amicus briefs, the Request is an improper attempt to expand the page limits of FilmOnX’s
opposition memorandum, as set forth in LCvR 7(e), and to incorporate by reference arguments
not properly before the Court here, such as those made by third parties who have not sought or
been granted leave to file amicus briefs in this case. See Crummey v. Soc. Sec. Admin., 794 F.
Supp. 2d 46, 54 (D.D.C. 2011) (denying party’s request for judicial notice to the extent it was an
improper attempt “to supplement his arguments in opposition to” the underlying motion);
BarryDriller, 915 F. Supp. 2d at 1142 (“The Court would not take judicial notice of the amicus
briefs because, as Plaintiffs object, the request is an implicit attempt to extend Defendants’ page
limits without leave, or to file amicus briefs without leave.”) (citing Calence, LLC v. Dimension
Data Holdings, PLC, 222 F. App’x 563, 566 (9th Cir. 2007)).
For the foregoing reasons, Plaintiffs respectfully request that the Court deny the Request
in its entirety. To the extent that the Court chooses to consider the amicus briefs, Plaintiffs
request that the Court give them an opportunity to fully respond to those additional arguments.

Dated: August 23, 2013

Respectfully submitted,
/s/ Paul Smith
Paul Smith (D.C. Bar No. 358870)
[e-mail]
JENNER & BLOCK LLP
1099 New York Avenue, NW, Suite 900
Washington, DC 20001-4412
Telephone: [phone]
Facsimile: [phone]

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Richard L. Stone (admitted pro hac)
[e-mail]
Julie A. Shepard (admitted pro hac)
[e-mail]
Amy Gallegos (admitted pro hac)
[e-mail]
JENNER & BLOCK LLP
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
Corporation, and Fox Broadcasting Company
/s/ Robert Garrett
Robert Alan Garrett (D.C. Bar No. 239681)
Hadrian R. Katz (D.C. Bar No. 931162)
Christopher Scott Morrow
(D.C. Bar No. 491925)
Murad Hussain (D.C. Bar No. 999278)
ARNOLD & PORTER LLP
555 12th St., NW
Washington, DC 20004
Telephone: [phone]
Facsimile: [phone]
James S. Blackburn (admitted pro hac)
[e-mail]
John C. Ulin (admitted pro hac)
[e-mail]
ARNOLD & PORTER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs NBC Subsidiary (WRCTV) 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.

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