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

Filing 39

Memorandum in opposition to re 36 Emergency MOTION to Stay Preliminary Injunction, 38 Emergency MOTION Judicial Notice re 37 Emergency MOTION for Reconsideration re 33 Memorandum & Opinion, 34 Preliminary Injunction, , 36 Emergency MOTION to Stay Preliminary Injunction 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 Declaration of Julie A. Shepard, # 2 Objections to Defendants' Supplemental Evidence, # 3 Objections to Defendants' Request for Judicial Notice, # 4 Text of Proposed Order)(Smith, Paul)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
-----------------------------------------------x
FOX TELEVISION STATIONS, INC., et al.,
Plaintiffs,
v.

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

FILMONX, LLC (f/k/a AEREOKILLER
LLC), et al.,
Defendants.
-----------------------------------------------x

DECLARATION OF JULIE A. SHEPARD IN SUPPORT OF PLAINTIFFS’
OPPOSITIONS TO DEFENDANTS’ EMERGENCY MOTIONS

2228568.2

I, Julie A. Shepard, declare as follows:
1.

I am an attorney licensed to practice law in the State of California, and I am a

partner at Jenner & Block LLP, counsel of record for plaintiffs Fox Television Stations, Inc.,
Twentieth Century Fox Film Corp., and Fox Broadcasting Company (collectively, “Fox”). I
submit this declaration in support of the Plaintiffs’ Opposition to Defendants FilmOnX, LLC
(f/k/a Aereokiller LLC), FilmOn.TV Networks, Inc., FilmOn.TV, Inc., and FilmOn.com, Inc.
(collectively, “FilmOnX” or “Defendants”) Motion for Reconsideration and Motion to Stay. As
used herein, the term “Plaintiffs” means Fox and the other plaintiffs in this action. I have
personal knowledge of the facts set forth in this declaration and, if called as a witness, I could
and would testify competently to such facts under oath.
2.

FilmOnX recently expanded its Internet television operations into Seattle,

Washington. It did so even though FilmOnX cannot (and to Plaintiffs’ knowledge does not)
retransmit Plaintiffs’ broadcast copyrighted programming in Seattle or anywhere else in the
Ninth Circuit in light of the injunction issued by Judge Wu in Fox Television Stations, Inc. v.
BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138, 1148 (C.D. Cal. 2012), barring FilmOnX
from retransmitting the Plaintiffs’ content within the Ninth Circuit. Attached hereto as Exhibit
A is a true and correct copy of FilmOn’s press release describing its Seattle service, dated
August 13, 2013, which was downloaded from Defendants’ web site.
3.

Attached hereto as Exhibit B is a true and correct copy of excerpts of a

declaration filed by Defendants in support of their opposition to Fox’s motion for a preliminary
injunction in the Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC case in the
Central District of California.

2
2228568.2

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 11th day of September, 2013 at Los Angeles, California.

ieA. SKepard

2228568.2

EXHIBIT A

FilmOn Plc Content Systems — Billionaire Media Entrepreneur Alki David Officially Op... Page 1 of 1

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Billionaire Media Entrepreneur Alki David Officially Opens FilmOn's Seattle Antenna Array Free to the Public

Billionaire Media Entrepreneur Alki David Officially Opens FilmOn's Seattle Antenna Array Free to the Public

LOS ANGELES, Aug. 13, 2013 (GLOBE NEWSWIRE) -- FilmOn.com (http://www.FilmOn.com/affiliate/channels), the world's largest free internet television provider, today
announced the opening of its Seattle antenna array, making it the twelfth FilmOn data center in the USA offering consumers free access to individual antennas over the internet
and outperforming its rival Aereo in coverage, size and price.
A photo accompanying this release is available athttp://www.globenewswire.com/newsroom/prs/?pkgid=20450
FilmOn is legally able to offer its full service in the rest of the country outside of the 9th Circuit and is currently doing so in New York, Boston, Chicago, Dallas, Miami, Denver,
Atlanta, New Jersey and Connecticut. Within the next two weeks Philadelphia, Detroit, Minneapolis and Honolulu will open.
FilmOn is also active with other local channels in San Francisco, Phoenix, and Los Angeles, as these cities fall within the 9th Circuit as a result of a temporary restraining order
given to FilmOn, preventing it from allowing consumers to tune their antennas to the four major networks.
Billionaire media entrepreneur Alki David officially opened the Seattle data center today, saying: "This is an important day for FilmOn because we have opened a fourth data center
within the 9th Circuit. The Federal Court of Appeals is hearing our case on August 27th where we sincerely hope an unfair decision is overturned. In the 9th Circuit (mainly West
Coast) we are currently restrained from allowing consumers to tune in to NBC, FOX, CBS and ABC via our perfectly legal antenna arrays. Unlike would-be competition we do not
charge audiences to watch something that is already freely available." David continues: "We have been likened to being an Aereo copycat service, but we are in far more cities
with our antenna arrays than any other firm. We carry over 600 live worldwide channels, plus 45,000 Video On Demand titles - and all for free. FilmOn has been in business since
2006 and we produce and license content from premium providers, which clearly makes us a totally different proposition to any other service.

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EXHIBIT B

Case 2:12-cv-06950-GW-JC Document 51-5

Filed 11/15/12 Page 1 of 49 Page ID #:1064

Case 2:12-cv-06950-GW-JC Document 51-5

Filed 11/15/12 Page 2 of 49 Page ID #:1065

Case 2:12-cv-06950-GW-JC Document 51-5

Filed 11/15/12 Page 8 of 49 Page ID #:1071

Case 2:12-cv-06950-GW-JC Document 51-5

Filed 11/15/12 Page 9 of 49 Page ID #:1072