FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al
Filing
37
Emergency MOTION for Reconsideration re 33 Memorandum & Opinion, 34 Preliminary Injunction, by AEREOKILLER LLC,, FILMON X, LLC, FILMON.COM, INC,, FILMON.TV NETWORKS, INC.,, FILMON.TV, INC. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Text of Proposed Order)(Baker, Ryan)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
CIVIL ACTION NO. 1:13-cv-00758 (RMC)
FOX TELEVISION STATIONS, INC., et al.
Plaintiffs/Counter-Defendants,
v.
Civil No. 1:13-cv-00758 (RMC)
FILMON X LLC, et al.
Defendants/Counter-Plaintiffs.
_______________________________________
DECLARATION OF MYKOLA KUTOVYY IN SUPPORT OF
EMERGENCY MOTIONS
I, Mykola Kutovyy, declare:
1.
I submit this declaration in support of (1) Defendants’ Motion for Reconsideration
of the Geographic Scope of the Preliminary Injunction and Bond Amount and (2) Defendants’
Emergency Motion to Stay the Preliminary Injunction Pending Appeal and to Modify the Scope
of the Injunction. I have personal knowledge of the facts set forth herein and, if called as a
witness, I could and would testify competently thereto.
3.
I submitted a declaration in support of FilmOn X’s Opposition to Plaintiffs’
Motion for Preliminary Injunction. (Dkt. 31-2.) In that declaration, I provided an explanation of
FilmOn X’s Technology. However, in light of this Court’s Opinion Granting Plaintiffs’ Motion
for Preliminary Injunction, this declaration seeks to further clarify some aspects my previous
explanation of the technology and the “one-to-one relationship” between FilmOn X’s
technological system and its users. When a FilmOn X Technology user chooses to view a
program, the FilmOn X system generates a unique copy of a television program that only the
particular user may view. That unique copy is stored in a hard-drive directory unique to the
specific user, which cannot be accessed by any other user. Thus, although FilmOn X provides
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DECLARATION OF MYKOLA KUTOVYY
servers and various other equipment, a unique copy of any particular program is only available
for viewing by the particular user who made the request, enabling only solely a private
transmission.
4.
On page 5 of the Memorandum of the Opinion, the Court states, “all dynamic
antennas are shared” and, in a footnote, that “[according to Aereo I, even static users sometimes
share antennas.” A FilmOn X Technology user will never simultaneously “share” an antenna
with another user. A “static” FilmOn X Technology user will never “share” his or her antenna.
The FilmOn X static antennas are designed to that no sharing may occur. Each time a “dynamic”
FilmOn X user logs onto the FilmOn X Technology system, he or she is assigned an antenna that
only he or she may control until that user logs off of the system.
5.
On page 5 of the Memorandum Opinion, the Court states, “[the video encoder is
connected to a ‘distribution endpoint,’ which is a ‘server or group of servers’ that delivers the
video and audio to FilmOn X users.” When a FilmOn X Technology user requests content from
the FilmOn X website, the data obtained by a particular antenna while allocated to a particular
user is not “shared” with or accessible by any other FilmOn X user. That data is completely
individualized.
6.
At the time the allocated antenna picks up the individualized data, a unique
directory assigned specifically to an individual user is created in order to individually store the
data received by the allocated antenna.
7.
The data has to be processed by the transcoder so it will be in a format that allows
it to be transmitted to the user. The transcoding process does not alter or affect the
individualized nature of the data.
8.
The distribution endpoint, which is made up a server or groups of servers, is the
distribution point for the data. It still maintains the completely individualized nature of the
transcoded data. There are server partitions within the servers, as well as unique codes that
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DECLARATION OF MYKOLA KUTOVYY
isolate and maintain individualized nature of each set of data that is sent in response to a user’s
request for content through FilmOn X’s system.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
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Executed on September ____, 2013, at LONDON
_________________.
By:
Mykola Kutovyy
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DECLARATION OF MYKOLA KUTOVYY
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