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

Filing 40

Memorandum in opposition to re 37 Emergency MOTION for Reconsideration re 33 Memorandum & Opinion, 34 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 Objections to Defendants' Supplemental Evidence, # 2 Objections to Defendants' Request for Judicial Notice, # 3 Text of Proposed Order)(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’
SUPPLEMENTAL EVIDENCE
Plaintiffs1 respectfully submit their Objections to the Declarations of Alkiviades David
and Mykola Kutovyy filed by Defendants FilmOn X, LLC, FilmOn.TV Networks, Inc.,
FilmOn.TV, Inc., and FilmOn.com, Inc. (collectively, “FilmOnX”) in support of FilmOnX’s
Motion for Reconsideration and Motion to Stay.2
This Court should not consider either declaration, since FilmOnX has not provided any
reason why its evidence could not have been presented along with its opposition to the Plaintiffs’
motion for a preliminary injunction, which the Court granted. Schoenbohm v. F.C.C., 204 F.3d
243, 250 (D.C. Cir. 2000) (evidence that was “previously available” is not “new evidence”

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.
2
FilmOnX filed identical declarations by Mr. David and Mr. Kutovyy in support of each of its
motions. See Dkt. Nos. 36-2; 36-3; 37-2; 37-3. For the Court’s convenience, Plaintiffs refer to
the declarations collectively.

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supporting reconsideration); Olson v. Clinton, 630 F. Supp. 2d 61, 63 (D.D.C. 2009) (“Even if
evidence is newly raised, it is not considered new evidence if it was previously available.”)
(internal quotation marks omitted); Bao Ge v. Li Peng, 209 F.R.D. 250, 251 (D.D.C. 2000)
(denying motion for reconsideration because the plaintiffs “failed to present any new evidence
that was not previously available and which would alter this Court’s conclusions”); see also
James v. England, 226 F.R.D. 2, 7 (D.D.C. 2004) (“[A]rguments that should have been
previously raised, but are only raised for the first time in a motion for reconsideration, will not be
entertained by this Court.”); Summitt Investigative Serv., Inc. v. Herman, 34 F. Supp. 2d 16,
26 (D.D.C. 1998) (“Furthermore, it is a cardinal tenet of federal-civil practice that a court — trial
or appellate — will not consider matters raised for the first time in a motion for
reconsideration.”).
FilmOnX relies on Mr. David’s Declaration to substantiate the purported harms that
compliance with this Court’s injunction will cause FilmOnX. Dkt. No. 36, at 8-9; Dkt. No. 37, at
5. FilmOnX’s complaints are primarily directed at the fact that this Court — in accordance with
17 U.S.C. § 502 — enjoined FilmOnX’s infringement nearly nationwide. See id. But FilmOnX
was entirely aware of that possibility when it filed its opposition to Plaintiffs’ motion for a
preliminary injunction — indeed, it strenuously argued for the imposition of a geographically
limited injunction. See Dkt. No. 31, at 27-29.3 That was FilmOnX’s opportunity to make the
arguments it raises now. See Schoenbohm, 204 F.3d at 250; James, 226 F.R.D. at 7; Summitt
Investigative Serv., 34 F. Supp. 2d at 26. Its failure to do so renders Mr. David’s Declaration
improper, and so it should not be considered.
Beyond being untimely, Mr. David’s Declaration suffers from additional serious
3

FilmOnX submitted statements from both of its current declarants in support of its opposition.

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evidentiary problems. First, Mr. David relies on his alleged “knowledge” and “experience” “in
the industry” to support the harms he claims will befall FilmOnX, see David Decl. ¶¶ 6-8, but
has not provided any evidence suggesting that he has any knowledge or experience qualifying
him to make such statements. Fed. R. Evid. 602; 701. Second, while Mr. David repeatedly
speculates on the potential future implications of FilmOnX’s compliance, see David Decl. ¶¶ 710, including its effect on Aereo, FilmOnX has not produced a shred of evidence corroborating
his prognostication beyond his own say-so. By way of an example, FilmOnX has not shown that
complying with Judge Wu’s order — to the extent that it did — cost it even a single subscriber,
despite the fact that the Central District of California’s injunction has been in place for nearly a
year. Third, Mr. David claims that FilmOnX has invested, and will lose, millions of dollars by
stopping its illegal retransmission. David Decl. ¶¶ 5, 7, 9-10. Better evidence for that statement
obviously exists — FilmOnX’s actual books and records. FilmOnX has not provided any of
them. Fed. R. Evid 1001; 1002.
Moreover, Mr. Kutovyy’s Declaration, which FilmOnX relies on in its Motion for
Reconsideration, should be excluded because the statements it contains are irrelevant. Fed. R.
Evid. 402. FilmOnX cites Mr. Kutovyy’s Declaration to “clarify” the Court’s description of its
infringing service. Dkt. No. 37, at 6-8. Specifically, FilmOnX has warmed over its argument
that its service permits its users to access “individual copies” of Plaintiffs’ programming by
relying on a complex system of single antennas and hard drive space. Id.
This Court understood the individual nature of FilmOnX’s service. See Dkt. No. 33, at 1
(“FilmOn X assigns an individual user the content stream from one of thousands of minute
antennas that it operates in major metropolitan areas, including Washington, D.C.”); id. at 5
(describing the “dynamic” option as “a specific antenna [] assigned to one specific individual

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user only when that user is watching television via FilmOn X and [] assigned to a different user
when the first user is done”); id. (“No single antenna is used by more than one user at a single
time[.]”); id. at 20-21 (“FilmOn X advances the opposing view as to the meaning of the Transmit
Clause and Congress’s intent in enacting it, asserting that FilmOn X enables only individual
private performance of the copyrighted works and does not infringe Plaintiffs’ exclusive
rights.”). As this Court correctly held, however, it doesn’t matter that FilmOnX’s service
provides a single antenna to a single user at a time. Id. at 21-29.
As this Court explained, Congress explicitly intended the Copyright Act to impose
liability on retransmitting services regardless of the “device or process” they use. Id. at 25
(quoting 17 U.S.C. § 101). Mr. Kutovyy’s Declaration simply reiterates immaterial features of
FilmOnX’s system. Therefore, the descriptions in Mr. Kutovyy’s Declaration do not make any
fact “of consequence in determining the action” “more or less probable than it would be without
the evidence.” Fed. R. Evid. 401. Further, FilmOnX has provided no explanation for its failure
to submit this information along with its opposition to Plaintiffs’ motion for a preliminary
injunction, supplying a additional reason that it should not be considered by this Court. See
Schoenbohm, 204 F.3d at 250; James, 226 F.R.D. at 7; Summitt Investigative Serv., 34 F. Supp.
2d at 26.

Dated: September 11, 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]
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Facsimile: [phone]
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
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Inc., CBS Studios Inc., and Gannett Co., Inc.

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