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

Filing 5

AMENDED COMPLAINT against AEREOKILLER LLC,, FILMON.COM, INC,, FILMON.TV NETWORKS, INC., FILMON.TV, INC. with Jury Demand filed by GANNETT CO., INC., CBS BROADCASTING INC., CBS STUDIOS. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(rdj)

EXHIBIT A

Fox Television Stations, Inc. v. BarryDriller Content..., --- F.Supp.2d ---- (2012)
41 Media L. Rep. 1515

2012 WL 6784498
United States District Court,
C.D. California.

[2]

FOX TELEVISION STATIONS, INC., et al.
v.
BARRYDRILLER CONTENT SYSTEMS, PLC, et
al.

Courts should not issue nationwide injunctions
where injunction would not issue under law of
another circuit.

Case No. CV 12–6921–GW(JCx). | Dec. 27, 2012. |
Order Entering Injunction Dec. 27, 2012.

Synopsis
Background: Broadcast television networks brought
action alleging that provider of internet and mobile device
streaming service infringed their copyrights by
retransmitting their broadcasts. Networks moved for
preliminary injunction.

Injunction
Geographical Scope of Relief

[3]

Copyrights and Intellectual Property
Nature and Elements of Injury
Plaintiffs must meet two requirements to present
prima facie case of direct copyright
infringement: (1) ownership of infringed
material, and (2) violation by infringer of at least
one exclusive right granted to copyright holders.
17 U.S.C.A. § 106.

Holdings: The District Court, George H. Wu, J., held
that:
[1]

networks were likely to succeed on merits of their
claim;
[2]

networks suffered irreparable harm; and

[3]

preliminary injunction covered only Ninth Circuit.

[4]

Copyrights and Intellectual Property
Presumptions and Burden of Proof
Plaintiff bears burden of proving copyright
infringement.

Motion granted in part and denied in part.

West Headnotes (10)
[5]
[1]

Injunction
Grounds in General;  Multiple Factors
Plaintiff seeking preliminary injunction must
establish that: (1) it is likely to succeed on
merits, (2) it is likely to suffer irreparable harm
in absence of preliminary relief, (3) balance of
equities tips in its favor, and (4) injunction is in
public interest.

Evidence
Proceedings in Other Courts
Courts may take judicial notice of another
court’s opinion for opinion’s existence, but not
for truth of facts recited therein. Fed.Rules
Evid.Rule 201, 28 U.S.C.A.

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[6]

ability to negotiate favorable retransmission
consent agreements with cable, satellite, and
telecommunications
providers,
damaged
networks’ goodwill with their licensees,
competed with networks’ ability to develop their
own internet distribution channels, and harmed
their negotiations with advertisers.

Evidence
Proceedings in Other Courts
Court would take judicial notice of scheduling
order in another court. Fed.Rules Evid.Rule 201,
28 U.S.C.A.

[7]

Evidence
Proceedings in Other Courts
Court would not take judicial notice of amicus
briefs filed in another court, where request was
implicit attempt to extend defendants’ page
limits without leave, or to file amicus briefs
without leave. Fed.Rules Evid.Rule 201, 28
U.S.C.A.

[8]

[10]

Copyrights and Intellectual Property
Preliminary Injunction
Preliminary injunction issued in broadcast
television networks copyright infringement
action against internet and mobile device
streaming service covered only Ninth Circuit,
where application of Ninth Circuit law that
differed from Second Circuit law, and other
circuits had not yet ruled on issue of whether
retransmissions were public performances.

Copyrights and Intellectual Property
Preliminary Injunction
Broadcast television networks were likely to
succeed on merits of their claim that internet and
mobile device streaming service infringed their
exclusive right to make public transmissions of
their copyrighted works by retransmitting their
broadcasts, and thus preliminary injunction was
warranted, despite service provider’s contention
that
retransmissions
were
not
public
performances. 17 U.S.C.A. § 106.
1 Cases that cite this headnote

Attorneys and Law Firms
David R. Singer, Julie A. Shepard, Kenneth D. Klein,
Richard Lee Stone, Jenner and Block LLP, Los Angeles,
CA, Steven B. Fabrizio, Jenner and Block LLP,
Washington, DC, for Fox Television Stations, Inc., et al.
Ryan G. Baker, Christian Anstett, Jaime W. Marquart,
Baker Marquart LLP, Los Angeles, CA, for Aereokiller
LLC.
Opinion

[9]

Copyrights and Intellectual Property
Preliminary Injunction
Broadcast
television
networks
suffered
irreparable harm as result of internet and mobile
device streaming service’s infringement upon
their exclusive right to make public
transmissions of their copyrighted works, and
thus preliminary injunction was warranted,
where service threatened to damage networks’

PROCEEDINGS: PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION (filed 11/08/12)
GEORGE H. WU, District Judge.
*1 Kane Tien Deputy Clerk
Wil Wilcox Court Reporter/Recorder

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Court hears oral argument. The Tentative Final Ruling
circulated and attached hereto, is adopted as the Court’s
final ruling. The Court GRANTS IN PART/DENIES IN
PART Plaintiffs’ motion for preliminary injunction.
Court signs the proposed order.
The Court accepts the following stipulation placed on the
record:
1. Within two weeks of today’s date, Plaintiffs shall
receive a representation or representations under oath
from an officer competent to speak for both Aereokiller
and FilmOn with respect to the mini antennae for each
applicable local station are located in the locality for
that local station defined as the Nielson DMA for each
particular local station.
2. All statements in slide number 5 of the technology
tutorial presented by defendants entitled Aereokiller’s
Mini Antenna Technology (attached as Exhibit A) in
fact occur completely within the locality of each
applicable local station that is retransmitted defined as
the local DMA. This includes the web server, antenna
router, antenna tuner, server, Aereokiller antennas, the
encoder, the DVR folders, and the delivery or
sometimes called the streaming server.
3. None of these steps are accomplished by backhaul or
any other method whereby the signal comes through
the Ninth Circuit and goes back out to these local
DMAs.
I. Introduction
Plaintiffs Fox Television Stations, Inc., Twentieth
Century Fox Film Corp., and Fox Broadcasting Co., Inc.
(in CV–12–6921), and Plaintiffs NBCUniversal Media
LLC, Universal Network Television LLC, Open 4
Business Productions LLC, NBC Subsidiary (KNBC–TV)
LLC, Telemundo Network Group LLC, WNJU–TV
Broadcasting LLC, American Broadcasting Companies,
Inc., ABC Holding Company Inc., Disney Enterprises,
Inc., CBS Broadcasting Inc., CBS Studios Inc., and Big
Ticket Televison, Inc. (in CV–12–6950) (collectively,
“Plaintiffs”) moved for a preliminary injunction against
Defendants Aereokiller LLC, Alkiviades “Alki” David,
FilmOn.TV Networks, Inc., Filmon.TV, Inc., and
FilmOn.com, Inc. (collectively, “Defendants”).1 Plaintiffs
filed an identical motion in each action. Memorandum in
Support of Plaintiffs’ Motion for Preliminary Injunction
(“Mot.”), Docket No. 49 at 1 n. 1.2
Plaintiffs produce and license the distribution of
copyrighted works that appear on free, over-the-air
broadcast television networks. Id. at 4.3 Plaintiffs also

license that programming for distribution through cable
and satellite television, and through services such as
Hulu.com and Apple’s iTunes. Id. at 5. Plaintiffs accuse
Defendants of offering their copyrighted content through
internet and mobile device streaming. Id. at 5. Defendants
do not deny that they retransmit Plaintiffs’ copyrighted
broadcast programming, but argue that their service is
legal because it is technologically analogous to the service
which the Southern District of New York found to be
non-infringing in 4m. Broad. Cos. v. Aereo, Inc., No. 12
Civ. 1540(AJN), 2012 WL 3854042, 2012 U.S. Dist
LEXIS 96309 (S.D.N.Y. July 11, 2012) (“Aereo” ).4
Defendants contend that their systems are “better and
more legally defensible than Aereo’s,” but that the
systems are similar in allowing users to use an individual
mini digital antenna and DVR to watch or record a free
television broadcast.” Opp’n., Docket No. 46 at 1.
Defendants characterize their system as offering “a
user-directed private viewing of already available, free
over-the-air television content using the same antenna and
tuner technology employed by consumers for years.” Id.5

II. Legal Standards
A. Preliminary Injunctive Relief
*2 [1] A plaintiff seeking a preliminary injunction must
establish: (1) that it is likely to succeed on the merits, (2)
that it is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in
its favor, and (4) that an injunction is in the public
interest. Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).6

B. Geographical Reach of Injunction Where Circuit
Split Present
[2]
Courts should not issue nationwide injunctions where
the injunction would not issue under the law of another
circuit.
Principles of comity require that,
once a sister circuit has spoken to
an issue, that pronouncement is the
law of that geographical area.
Courts in the Ninth Circuit should
not grant relief that would cause
substantial interference with the
established
judicial
pronouncements of such sister
circuits. To hold otherwise would
create tension between circuits and
would encourage forum shopping.

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United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th
Cir.2008) (reversing grant of nationwide injunction).

C. Copyright Infringement
[3] [4]
Plaintiffs must meet two requirements to present a
prima facie case of direct infringement: (1) ownership of
the infringed material, and (2) violation of at least one
exclusive right granted to copyright holders under 17
U.S.C. § 106 by the infringer. A & M Records v. Napster,
Inc., 239 F.3d 1004, 1013 (9th Cir.2001).7

technology—which Plaintiffs dispute—Second Circuit
law would support Defendants’ position, because cases
there have held that where a transmission of a work over
the internet is made from a copy of a work made at the
direction of and solely for use by single user, there is no
public transmission. But, that Second Circuit law has not
been adopted in the Ninth Circuit, and this Court would
find that the Ninth Circuit’s precedents do not support
adopting the Second Circuit’s position on the issue.
Instead, the Court would find that Defendants’
transmissions are public performances, and therefore
infringe Plaintiffs’ exclusive right of public performance.

III. Analysis
A. The Court Would Grant In Part and Deny In Part
Defendants’ Request for Judicial Notice
[5] [6] [7]
Defendants request that the Court take judicial
notice of a scheduling order and two amicus briefs filed in
Aereo. Docket No. 46–1. Under Fed.R.Evid. 201, the
Court can take judicial notice of “a fact that is not subject
to reasonable dispute because it ... can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Courts may take judicial
notice of another court’s opinion for the existence of the
opinion, but not for the truth of the facts recited therein.
Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th
Cir.2001). The Court would take judicial notice of the
scheduling order. 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. Calence, LLC v. Dimension Data Holdings, PLC,
222 Fed.Appx. 563, 566 (9th Cir.2007) (district court did
not abuse its discretion in refusing to consider briefing
that party attempted to incorporate by reference).8

B. The Court Would Grant Plaintiffs’ Request for an
Injunction
1. Likelihood of Success on the Merits
[8]

Plaintiffs argue that Defendants’ internet
retransmission service infringes their exclusive right to
make public transmissions of their copyrighted works.9
Defendants do not deny Plaintiffs’ ownership of the
copyrights or Defendants’ transmission of the copyrighted
works but argue that, due to the architecture of their
systems, their transmissions are private, not public.
Assuming that Defendants accurately describe their

a. Defendants Infringe Plaintiffs’ Exclusive
Transmission Rights
*3 The Transmit Clause of the Copyright Act, 17 U.S.C. §
106(4), vests in a copyright holder the exclusive right “to
perform the copyrighted work publicly.” 17 U.S.C. § 101
defines a public performance to mean, inter alia, “to
transmit or otherwise communicate a performance or
display of the work ... to the public, by means of any
device or process, whether the members of the public
capable of receiving the performance or display receive it
in the same place or in separate places and at the same
time or at different times.” Defendants maintain that
under Second Circuit law, they are not making public
performances of Plaintiffs’ copyrighted content.
In Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536
F.3d 121 (2d Cir.2008) (“Cablevision ”), the Second
Circuit considered the question of whether a system that
made a unique copy of a television program requested by
a user and then transmitted that program from the
user-specific copy solely to that user violated the
copyright holder’s exclusive public performance right.
The Second Circuit first parsed the statutory definition of
public performance, and concluded that “[t]he fact that
the statute says ‘capable of receiving the performance,’
instead of ‘capable of receiving the transmission,’
underscores the fact that a transmission of a performance
is itself a performance.” Id. at 134. The Second Circuit
then reasoned that unless the transmission itself is public,
the transmitter has not infringed the public performance
right. Id. at 134–40.
That is not the only possible reading of the statute. The
definition section sets forth what constitutes a public
performance of a copyrighted work, and says that
transmitting a performance to the public is a public
performance. It does not require a “performance” of a
performance. The Second Circuit buttressed its definition

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with a “cf.” to Buck v. Jewell–La Salle Realty Co., 283
U.S. 191, 196, 51 S.Ct. 410, 75 L.Ed. 971 (1931), which
interpreted the 1909 Copyright Act’s provision of an
exclusive right to publicly perform a musical composition
and held that “the reception of a radio broadcast and its
translation into audible sound” is a performance. But
Buck, like Cablevision and this case, was concerned with
a copyright in the work that was broadcast. Id. at 195, 51
S.Ct. 410. The Supreme Court was not concerned about
the “performance of the performance”—instead, it held
that using a radio to perform the copyrighted song
infringed the exclusive right to perform the song (not to
perform the performance of the song). Id. at 196, 51 S.Ct.
410.
The Second Circuit further supported its position via
citation to the House Report on the 1976 Copyright Act,
which states that “a performance made available by
transmission to the public at large is ‘public’ even though
the recipients are not gathered in a single place.... The
same principles apply whenever the potential recipients of
the transmission represent a limited segment of the
public, such as the occupants of hotel rooms or the
subscribers of a cable television service,” and thus,
reasoned that the transmission had to itself be public.
Cablevision at 135 (emphasis in Cablevision ).10 The
Second Circuit concluded that as a result of its above
analysis:
*4 the transmit clause directs us to
examine who precisely is “capable
of
receiving”
a
particular
transmission of a performance.
[B]ecause
each
RS–DVR
transmission is made using a single
unique copy of a work, made by an
individual subscriber, one that can
be decoded exclusively by that
subscriber’s cable box, only one
subscriber is capable of receiving
any given RS–DVR transmission.
Id. at 135. But the House Report did not discuss which
copy of a work a transmission was made from. The statute
provides an exclusive right to transmit a performance
publicly, but does not by its express terms require that
two members of the public receive the performance from
the same transmission. The statute provides that the right
to transmit is exclusive “whether the members of the
public capable of receiving the performance or display
receive it in the same place or in separate places and at the
same time or at different times.” 17 U.S.C. § 101. Again,
the concern is with the performance of the copyrighted
work, irrespective of which copy of the work the

transmission is made from. Very few people gather
around their oscilloscopes to admire the sinusoidal waves
of a television broadcast transmission. People are
interested in watching the performance of the work. And
it is the public performance of the copyrighted work with
which the Copyright Act, by its express language, is
concerned. Thus, Cablevision’s focus on the uniqueness
of the individual copy from which a transmission is made
is not commanded by the statute.
The Second Circuit’s focus is also in tension with
precedent in the Ninth Circuit. Cablevision expressly
disagreed with On Command Video Corp. v. Columbia
Pictures Industries, 777 F.Supp. 787 (N.D.Cal.1991),
which held that a hotel system that transmitted to
individual hotel rooms movies being played from
individual videotapes by remote control from a central
bank in a hotel equipment room violated the copyright
holder’s public performance right. The Second Circuit
believed On Command wrongly decided, but also
distinguished On Command on the basis that the hotel
system at issue there made multiple successive
transmissions to different members of the public from a
single copy of the work, whereas Cablevision’s system
used a separate copy of each work to make the
transmission. Cablevision at 138–39. That is only a
relevant distinction if one focuses on whether the
transmission is publicly performed. Precedent in the Ninth
Circuit instead properly looks at public performance of
the copyrighted work.
In Aereo, the Southern District of New York recently
applied Cablevision to find that a service that assigned
each user a unique antenna, allowing each user to watch
over the internet live or recorded television broadcasts
received by the user’s unique antenna, did not infringe the
copyright holder’s right of public performance. Following
Cablevision, Aereo found no infringement because the
defendant’s service operated such that the broadcasts
captured by the individual user’s assigned antenna were
never shared with or accessible to any other user. Aereo,
2012 WL 3854042, at *, 2012 U.S. Dist LEXIS 96309, at
*10.
*5 In addition to their reliance on their interpretation of
the text of the Copyright Act,11 the Second Circuit in
Cablevision and the Southern District of New York in
Aereo also reached their results by reasoning that the
defendant was providing a service equivalent to what
individuals could lawfully do for themselves. Cablevision
at 136 (discussing hypothetical, albeit non-existent,
liability for the “hapless customer who records a program
in his den and later transmits the recording to a television
in his bedroom”12); Aereo, 2012 WL 3854042, at *, *,

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2012 U.S. Dist LEXIS 96309, at *9, *36 (“the
functionality of Aereo’s system from the user’s
perspective substantially mirrors that available using
devices such as a DVR or Slingbox, which allow users to
access free, over-the-air broadcast television on mobile
internet devices of their choosing”). But Congress has
rejected that mode of reasoning in this context. The
equivalency between (1) what individuals could lawfully
do for themselves and (2) what a commercial provider
doing the same thing for a number of individuals could
lawfully do, was the basis of the Supreme Court’s cable
television jurisprudence before the 1976 Copyright Act.
The Supreme Court held that if an individual:
erected an antenna on a hill, strung
a cable to his house, and installed
the
necessary
amplifying
equipment, he would not be
‘performing’ the programs he
received on his television set. The
result would be no different if
several people combined to erect a
cooperative antenna for the same
purpose. The only difference in the
case of CATV is that the antenna
system is erected and owned not by
its users but by an entrepreneur.
Fortnightly Corp. v. United Artists Television, Inc., 392
U.S. 390, 400, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968).
Acting in response to Fortnightly, Congress found the
difference significant and legislated accordingly in the
1976 Copyright Act. As Plaintiffs point out, Congress
found that “cable systems are commercial enterprises
whose basic retransmission operations are based on the
carriage of copyrighted program material and ... copyright
royalties should be paid by cable operators to the creators
of such programs.” See H.R. Rep. No. 94–1476, at 88–89
(1976), 1976 U.S.C.C.A.N. 5659, 5704, cited in Reply,
Docket No. 52 at 4. So too here. The Court finds that
Defendants’ unique-cony transmission argument based on
Cablevision and Aereo is not binding in the Ninth
Circuit.13
At the Motion hearing, Defendants urged that Cablevision
was only important to their argument insofar as it
recognized the importance of customer control and held
that a cable company was not liable for the acts of its
customers. But as Aereo followed Cablevision’s holding
that the transmission from unique copies avoids
infringement of the public performance right, that aspect
of Cablevision in fact appears central to Defendants’
argument in this case.
At the hearing, Defendants also analogized their service

to self-contained portable televisions of the kind that have
been available for many years which can be used, e.g., by
attendees at a football game to watch another game being
played at the same time. That argument ignores a key
distinction. In marked contrast to Defendants’ system
here, such portable televisions play the broadcast signal
within inches of the place the signal is received by the
attached antenna, and do not “send[ ] out some sort of
signal via a device or process to be received by the public
at a place beyond the place from which it is sent.”
Columbia Pictures Indus., Inc. v. Prof’l Real Estate
Investors, Inc., 866 F.2d 278, 282 (9th Cir.1989).
*6 Thus, Plaintiffs have shown a likelihood of success on
the merits on their public performance theory of liability,
at least within the Ninth Circuit.14

2. Irreparable Harm
[9]

Plaintiffs have demonstrated irreparable harm.
Revenues from retransmission consent licensing have
become increasingly important to the broadcast industry,
and are used to fund the development and acquisition of
broadcast programming. Decl. of Sherry Brennan in
Support of Mot. (“Brennan Decl.”), Docket No. 41–9, at ¶
15. Defendants’ service threatens to damage Plaintiffs’
ability to negotiate favorable retransmission consent
agreements with cable, satellite and telecommunications
providers. Id. at ¶¶ 15–17. If Defendants can transmit
Plaintiffs’ content without paying a fee, Plaintiffs’
existing and prospective licensees will demand
concessions to make up the loss of viewership to
non-paying alternatives, and may push additional players
away from license-fee paying technologies and toward
free technologies like Defendants’. The availability of
Plaintiffs’ content from sources other than Plaintiffs also
damages Plaintiffs’ goodwill with their licensees. Warner
Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F.Supp.2d 1003,
1012–1013 (C.D.Cal.2011) (“WTV ”), Brennan Deck,
Docket No. 41.–9 at ¶¶ 15–17.
Defendants’ service also competes with Plaintiffs’ ability
to develop their own internet distribution channels.
Plaintiffs license a variety of entities, including Hulu.com
(which licenses content from Fox, NBC and ABC for
internet distribution) and Apple (which licenses content
from all four networks for distribution through iTunes) to
distribute programming over the Internet on a
time-delayed basis. Brennan Deck, Docket No. 41–9 at ¶¶
18–20. Defendants’ competing activity puts the same kind
of pressure on those licensing relationships as it does on
Plaintiffs’ traditional retransmission relationships, but to a

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greater degree, because the services are more directly
substitutable. The same is true for Plaintiffs’ proprietary
internet distribution websites and mobile applications. Id.
¶¶ 18, 21–23.
Because Defendants divert users who would otherwise
access Plaintiffs’ content in a way that includes the users
in the measurement of the audience for purposes of
advertising revenue calculation, Defendants’ service also
harms Plaintiffs’ position in their negotiations with
advertisers. Id. ¶¶ 8–13, Aereo, 2012 WL 3854042 at *,
2012 U.S. Dist. LEXIS 96309 at *72.
The foregoing harms are irreparable because they are
“neither easily calculable, nor easily compensable.” WTV,
824 F.Supp.2d at 1013, Aereo, 2012 WL 3854042 at *,
2012 U.S. Dist. LEXIS 96309 at *72. Further, given the
extent of Defendants’ retransmissions, and the large
statutory damages that may be available, it is unlikely that
Defendants’ start-up companies would be likely to be able
to satisfy the damages award.

3. Balance of Harms
Defendants “cannot complain of the harm that will befall
[them] when properly forced to desist from [their]
infringing activities.” Triad Sys. Corp. v. Southeastern
Express Co., 64 F.3d 1330, 1338 (9th Cir.1995). To the
extent that the Court finds that Plaintiffs are likely to
succeed on the merits here, then Defendants have no
equitable interest in continuing an infringing activity. Id.
(citing Concrete Mach. Co. v. Classic Lawn Ornaments,
Inc., 843 F.2d 600, 612 (1st Cir.1988) (“Where the only
hardship that the defendant will suffer is lost profits from
an activity which has been shown likely to be infringing,
such an argument in defense ‘merits little equitable
consideration’ ”); Apple Computer, Inc. v. Franklin
Computer Corp., 714 F.2d 1240, 1255 (3d Cir.1983) (in
motion for preliminary injunction, district court should
not consider the “devastating effect” of the injunction on
the infringer’s business).

4. Public Interest
*7 There is “a public interest in making television
broadcasting more available.” Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 454, 104 S.Ct.
774, 78 L.Ed.2d 574 (1984). That public interest could in
theory cut both ways in the case, which pits television

creators and broadcasters against those who seek to use
that broadcasting without payment, or at least without
permission. But here, the public interest factor is
inextricably bound up in how the Court decides the
merits, which it does in light of Congress’s enactment and
revisions to the Copyright Law. “[I]t is virtually
axiomatic that the public interest can only be served by
upholding copyright protections and corresponddingly,
preventing the misappropriation of skills, creative
energies, and resources which are invested in the
protected work.” WTV, 824 F.Supp.2d at 1015 (citing
Apple Computer, Inc. v. Franklin Computer Corp., 714
F.2d 1240, 1255 (3rd Cir.1983) (internal quotations
omitted)). Thus, the public interest would be served by an
injunction if Plaintiffs are likely to succeed on the merits.

B. The Injunction Will Be of Limited Geographic Scope
[10]
Given the application of Ninth Circuit law that differs
from Second Circuit law, principles of comity prevent the
entry of an injunction that would apply to the Second
Circuit. United States v. AMC Entm’t, Inc., 549 F.3d 760
(9th Cir.2008). If other circuits do not have law that
conflicts with this decision, they might adopt such law
when presented with the choice. The Court would
therefore issue an injunction covering only the Ninth
Circuit.15
The parties submitted briefing on the issue of
geographical scope on December 26, 2012. Plaintiffs
argue that, based on Defendants’ argument at the motion
hearing, Defendants have abandoned their reliance on
Cablevision and Aereo, and instead reply on more general
arguments in Supreme Court cases that were superseded
by the 1976 Copyright Act. Joint Submission Re (1)
Geographic Scope of Preliminary Injunction and (2)
Amount of Preliminary Injunction Bond, Docket No. 74
at 1. Whether Defendants meant exactly that is unclear,
but in any event, the Court’s foregoing analysis rests
explicitly on interpreting the statutory language
differently than the Second Circuit did in Cablevision.
Plaintiffs argue that even focusing on Cablevision, the
Second Circuit is the only potential limitation to a
nationwide injunction, because “[n]o other Circuit has
adopted the public performance analysis in Cablevision
....” Docket No. 74 at 1–2. However, the Court notes that
the copyright-holder plaintiffs in Cablevision—a group
that included many of the Plaintiffs in this case—had
every reason to seek rulings contrary to Cablevision’s
public performance analysis in the other circuits in the
four years after Cablevision, and do not appear to have
done so. In those circumstances, the Court would not
assume that the other Circuits would agree with a decision

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from this Court rather than Cablevision.

C. Bond Amount
*8 Fed.R.Civ.P. 65(c) requires the party requesting the
preliminary injunction to provide security “in an amount
that the court considers proper to pay the costs and
damages sustained by any party found to have been
wrongfully enjoined.” The parties submitted briefing on
the proper bond amount on December 26, 2012. Plaintiffs
argue that no bond at all, or only a minimal bond, is
required. Docket No. 74 at 3. Plaintiffs argue that
Defendant David disclaimed Defendants’ interest in free
to air TV in August, that Defendants have over 150
channels, that Defendants voluntarily ceased streaming
Fox in late October with no adverse impact on its
business, and that Defendants have only 60 paying
subscribers for access to Plaintiffs’ local channels. Id.
Defendants for a very substantial bond of $15 million.
They argue that Defendant FilmOn was capitalized with
at least $19 Million, of which $10 Million was dedicated
to the technology at issue, that Defendants will lose a
substantial amount of that investment if wrongfully
enjoined, and that Plaintiffs have argued that Defendants
stand to take millions of dollars worth of market share if
not enjoined (Defendants imply that they stand to gain a
similar amount, although Defendants have not presented
evidence of that).

limited geographical scope of the injunction, fail to
explain why any portion of their technology investment
would be wasted in the event that Defendants act quickly
and successfully to obtain a reversal of the preliminary
injunction decision, and do not address Plaintiffs’ points
about Defendants’ non-infringing offerings. Given the
limited factual submissions, the Court finds it difficult to
ascertain an appropriate bond amount with certainty. The
damage to Defendants of an incorrectly entered injunction
could be greater than the loss of its current paying
subscribers. It could, and would likely try, to obtain
others, and Plaintiffs have pointed out that Defendants
receive advertising revenue from their free service. Yet,
Defendants have not provided the Court with competent
evidence of that revenue. Given the information provided
by both sides, the Court would set the bond in the amount
of $250,000 (two hundred and fifty thousand dollars).

IV. Conclusion
The Court would grant Plaintiffs’ motion for preliminary
injunction. The terms c injunction and bond requirements
will be set forth in separate orders issued in each case.

EXHIBIT A

Defendants’ arguments do not take into account the

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PRELIMINARY INJUNCTION ORDER
This Court, having considered all the submissions in
support of, and in opposition to, Plaintiffs Fox Television
Stations, Inc., Twentieth Century Fox Film Corp., and
Fox Broadcasting Company, Inc.’s (collectively “Fox” or
“Plaintiffs”) Motion for Preliminary Injunction
(“Motion”), and having considered all matters presented
at the hearings on this Motion, including the hearings on
December 6, 2012, December 20, 2012, and December
27, 2012 and good cause appearing as set forth in the
Court’s written ruling of December 27, 2012, hereby
GRANTS IN PART the Motion and ORDERS THAT:
1. For purposes of this Preliminary Injunction, the
following definitions shall apply:

a. “Plaintiffs” shall mean Fox Television Stations, Inc.,
Twentieth Century Fox Film Corp., and Fox
Broadcasting Company, Inc.
b. “Defendants” shall mean Aereokiller, LLC,
Alkiviades “Alki” David, FilmOn.TV Networks, Inc.,
FilmOn.TV, Inc., and FilmOn.com, Inc., whether
acting jointly or individually.
c. “Copyrighted Programming” shall mean each of
those broadcast television programming works, or
portions thereof, whether now in existence or later
created, including but not limited to original
programming, motion pictures and newscasts, in which
any of the Plaintiffs owns or controls an exclusive right
under the United States Copyright Act, 17 U.S.C. §§
101 et seq.
2. Pending a final resolution of this action, Defendants,

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and all of their parents, subsidiaries, affiliates, officers,
agents, servants, employees, attorneys, and those persons
in active concert or participation with them who receive
actual notice of this Order (the “Enjoined Parties”) are
preliminarily enjoined from retransmitting, streaming, or
otherwise publicly performing or displaying within the
geographic boundaries of the United States Court of
Appeals for the Ninth Circuit, directly or indirectly, over
the Internet (through websites such as filmonx.com or
filmon.com), via web applications (available through
platforms such as the Windows App Store, Apple’s App
Store, the Amazon Appstore, Facebook or Google Play),
via portable devices (through applications on devices such
as iPhones, iPads, Android devices, smart phones, or
tablets), or by means of any device or process, the
Copyrighted Programming.

the copyrights in the broadcast material they accuse
Defendants of infringing. Decl. of Marsha Reed,
Docket No. 41–11, Decl. of Carly Seabrook, Docket
No. 41–10, Decl. of Rebecca Borden, Docket No.
41–13. Defendants have not challenged Plaintiffs’
ownership of the copyrights.

4

An appeal was taken in Aereo and the Second Circuit
heard oral argument on November 30, 2012. Nos.
12–2807–cv and 12–2786–cv (filed July 16, 2012).

5

Plaintiffs’ expert argues that there are a number of
elements that are present in the Aereo system that
Defendants have not identified as part of their system.
Decl. of Nigel Jones in Support of Plaintiffs’ Reply
(“Jones Decl.”), Docket No. 52–2 at ¶ 7 and Ex. D
(article about the Aereo system). But the Court cannot
discern which of the Aereo-like elements Jones
identifies as missing from the Defendants’ system are
material to the determination in Aereo that the
transmissions in question are private rather than public.
As just one example, Plaintiffs’ expert states that the
declaration
submitted
by Defendants’ Chief
Technology Officer does not mention a demodulator.
Jones Decl., Docket No. 52–2 at 4. But neither does the
Aereo decision, so the Court is left to wonder as to
Plaintiffs’ contention regarding the legal significance of
the omission.
Defendants have moved to strike and objected to the
Jones Decl. The Court would deny the motion to
strike and overrule the objections. The Court would
find that the Jones Decl. fairly responds to the
Defendants’ arguments, and does not consist of
material that should have been submitted earlier, and
the evidentiary objections are not well-taken
(although Jones’s use of Aereo’s patent applications
is not helpful because the relevant question is
whether Defendants’ service resembles what the
Aereo decision described, not whether it resembles
what Aereo put in its patent applications).

6

The Court will not apply the standard set forth in
Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,
1131–35 (9th Cir.2011), as it views that standard as
being in conflict with both the Supreme Court’s ruling
in Winter and the Ninth Circuit’s own subsequent
adoption of the Winter standard. Am. Trucking Ass’n,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
Cir.2009) (“To the extent that our cases have suggested
a lesser standard [than that announced in Winter ], they
are no longer controlling, or even viable.”). It is a
commonplace observation that one three-judge panel of
the Ninth Circuit may not overrule an earlier
three-judge panel in the absence of intervening

3. Violation of this Preliminary Injunction shall expose
Defendants and all other persons bound by this
Preliminary Injunction to all applicable penalties,
including contempt of Court.
4. The injunction shall become effective two court days
after Plaintiffs file with the Court and serve through
CM/ECF a notice that the required bond in the amount of
$250,000.00 has been posted.
5. Within three court days of the effective date of the
Preliminary Injunction, Defendants shall file and serve a
report in writing and under oath setting forth in detail the
manner and form with which Defendants have complied
with the Preliminary Injunction.
6. Nothing herein shall restrict Plaintiffs’ ability to seek to
amend this injunction or to seek permanent injunctive
relief with terms that are broader in scope than those
delineated herein.
IT IS SO ORDERED.
1

Plaintiffs initially sued and moved for a preliminary
injunction against BarryDriller Content Systems, Plc.
and BarryDriller Inc. After discussing which entities
existed and had involvement in the conduct at issue, the
parties stipulated to the filing of a Second Amended
Complaint that names the current defendants only.
Docket No. 51.

2

All references to docket numbers are to CV–12–6921.

3

Plaintiffs have presented evidence of their ownership of

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controlling Supreme Court precedent, see United States
v. Mayer, 560 F.3d 948, 964 (9th Cir.), cert. denied,
––– U.S. ––––, 130 S.Ct. 158, 175 L.Ed.2d 100 (2009)
(though the Court might note that other district courts
within the Circuit have followed Alliance for Wild
Rockies without questioning its apparent conflict with
earlier Circuit authority).

7

8

Plaintiffs characterize the issue of whether Defendants’
service falls within the analysis of the Aereo decision as
a “defense” and argues that Defendants bear the burden
of establishing it. Mot., Docket No. 49 at 9, 3. But
Aereo found that “that Aereo’s service is likely lawful,”
not that Aereo had succeeded in proving a “defense.”
2012 WL 3854042 at *, 2012 U.S. Dist. LEXIS 96309
at *89 (emphasis added). Plaintiff bears the burden of
proving copyright infringement. A & M Records at
1013. “[T]he burdens at the preliminary injunction
stage track the burdens at trial.” Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir.2007).
Perfect 10 involved the affirmative defense of fair use,
but even where a plaintiff bears the burden of proof,
once the plaintiff has established its prima facie case,
the burden shifts to the defendant to rebut it. Harper &
Row Publishers, Inc. v. Nation Enterprises, 471 U.S.
539, 541, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)
(holding that once plaintiff establishes a prima facie
damages nexus for copyright infringement, the burden
shifts to the defendant).

The Court would not find it necessary to reach
Plaintiffs’ evidentiary objections nos. 2–4, which go to
the characterization of facts recited in Defendants’
attorney’s
declaration.
Plaintiffs’
Evidentiary
Objections, Docket No. 52–3. Nor would the Court find
it necessary to reach Plaintiffs’ evidentiary objection
no. 5, which concerns allegations related to a collateral
lawsuit. The Court would overrule Plaintiffs’
evidentiary objections nos. 6–8, which merely dispute
the accuracy of factual assertions made by Defendant
Alkiviades David or argue that he did not adequately
respond to questions at his deposition.
Additionally, Defendants contend in response to
Plaintiffs’ objections that they only seek judicial
notice of the existence of the amicus briefs filed in
the Aereo case in the Southern district of New York,
and have not offered them for their content. Def.’s
Resp. to Pl.’s Evidentiary Objections, Docket No. 66
at 1. Nonetheless, Defendants argue that the very
existence of the briefs shows that Defendants’
technology serves an important public interest. Id.
However, it is impossible to draw that conclusion
without examining the content of the proffered
briefs.

9

Plaintiffs argue that WPIX, Inc. v. ivi, Inc., 691 F.3d
275, 287 (2d Cir.2012), held that “retransmitting
over-the-air television via the Internet to subscribers” is
a public performance. That is too simple a distillation
of ivi, which did hold that the internet service at issue
made public performances of copyrighted works, but
did not consider the question raised in Aereo and at
issue here—whether it is a public performance to
receive a broadcast with an antenna assigned to a single
subscriber, and then retransmit that separately-received
transmission over the internet to a particular subscriber.
Likewise, Plaintiffs argue that “Cablevision did not
address the making of automatic buffer copies to
facilitate live streaming of television broadcasts over
the Internet,” but that its analysis “strongly suggests”
that such automatic buffer copies are a public
performance. Reply, Docket No. 52 at 8. Plaintiffs
seem to be relying on the fact that courts have found
“streaming” to be infringement of the transmission
right, and are arguing that streaming’s use of buffer
copies means that the buffer copy is itself a public
performance. But Plaintiffs have cited to no authority
that holds that the act of creating the transient buffer
copy—expressly considered in Cablevision and held
not to be an act of infringement—is an infringement of
the public performance right. Cablevision, 536 F.3d at
127.

10

The Second Circuit appears to implicitly bracket the
text of the House Report like this: [a performance made
available by] [transmission to the public]. It seems like
the House Report could just as easily be read like this:
[a performance made available by transmission] [to the
public]. Defendants make Plaintiffs’ copyrighted works
available to the public by transmission. The Second
Circuit’s reading effectively converts “available by
transmission” to “available by a single transmission.”
In any event, the statute uses the verb “transmit,” rather
than the noun used in the House Report.

11

Judge Posner has criticized the purely formalist textual
analytic approach to copyright cases involving alleged
infringement of the performance right:
To suppose that the cable television case can
rationally be decided by determining whether
cable television is more like a homeowner’s
putting up an antenna than it is like hiring an
orchestra to perform copyrighted music is absurd.
A rational resolution of the issue requires
discerning the purpose of giving the owner of a
copyrighted work the exclusive right to perform it.
The purpose is to prevent the form of free riding
that consists of waiting for someone to spend
money creating a valuable expressive work and
then preventing him from recouping his
investment by copying the work and selling copies

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at a price below the price the creator of the work
would have to charge to break even.
Richard A. Posner, Reasoning by Analogy, 91
Cornell L. Rev. 761, 771 (2006). Posner’s argument
supports Plaintiffs’ position here.

12

Cf. Buck, 283 U.S.
nothing public about
this case involves a
copyrighted content
millions, of people.

13

Plaintiffs did not brief their theory of liability for
copying. Reply, Docket No. 52 at 18. This decision
expresses no position on the outcome of the
Cablevision case itself under Ninth Circuit law.

14

at 196, 51 S.Ct. 410. There is
such a performance. By contrast,
commercial service transmitting
to thousands, and potentially

ivi Court’s analysis as to likelihood of success was
devoted to a ‘cable system’ affirmative defense that is
not being asserted by Defendants in this case and,
therefore, is wholly inapplicable.” Opposition, Docket
No. 46 at 18.

15

That should be possible because Defendants claim to be
able to limit their service geographically. Shepard
Decl., Docket No. 50, Ex. M (Nov. 1, 2012 Deposition
of Alkiviades David as Defendants’ 30(b)(6) witness),
at 206.

Parallel Citations
41 Media L. Rep. 1515

There potentially arose in this case an issue as to
whether internet retransmission services are properly
classified as “cable systems” and thus potentially
entitled to a compulsory license. However, this ruling
does not address that issue because it was expressly
disclaimed by Defendants: “The entire first half of the
End of Document

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