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

Filing 53

Memorandum in opposition to re 52 Emergency MOTION to Modify THE SCOPE OF THE 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 Exhibit 1 of 3, # 3 Exhibit 2 of 3, # 4 Exhibit 3 of 3)(Smith, Paul)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

FOX TELEVISION STATIONS, INC., et al.

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

Plaintiffs,
v.
FILMON X, LLC, et al.
Defendants.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION TO
MODIFY THE PRELIMINARY INJUNCTION

2234705.5

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I.

FILMON X’S UNCLEAN HANDS PREVENT IT FROM SEEKING
MODIFICATION OF THE SCOPE OF THE PRELIMINARY
INJUNCTION ..........................................................................................................2

II.

FILMON X’S PENDING APPEAL OF THE SCOPE OF THE
PRELIMINARY INJUNCTION DIVESTED THIS COURT OF
JURISDICTION TO MODIFY IT...........................................................................3

III.

JUDGE GORTON’S DECISION IS NOT A CHANGE IN
CONTROLLING LAW MERITING RECONSIDERATION ................................8

IV.

PRINCIPLES OF COMITY DO NOT WARRANT MODIFICATION OF
THE INJUNCTION ...............................................................................................11

CONCLUSION ............................................................................................................................. 12

i

TABLE OF AUTHORITIES
Page(s)
CASES
A & M Records, Inc. v. Napster, Inc.,
284 F.3d 1091 (9th Cir. 2002) ...................................................................................................4
Agostini v. Felton,
521 U.S. 203 (1997) ...................................................................................................................8
Am. Horse Protection Ass’n, Inc. v. Watt,
694 F.2d 1310 (D.C. Cir. 1982) .................................................................................................8
Cartoon Network LP, LLLP v. CSC Holdings, Inc.,
536 F.3d 121 (2d Cir. 2008) (“Cablevision”) .................................................................. passim
Cobell v. Norton,
310 F. Supp. 2d 77 (D.D.C. 2004) .........................................................................................5, 6
Coca-Cola Co. v. Standard Bottling Co.,
138 F.2d 788 (10th Cir. 1943) ...................................................................................................8
Common Cause v. Judicial Ethics Comm.,
473 F. Supp. 1251 (D.D.C. 1979) ............................................................................................12
Favia v. Indiana University of Pennsylvania,
7 F.3d 332, 334-35, 337 (3d Cir. 1993) .....................................................................................4
Fox Television Stations, Inc. v. BarryDriller Content Sys., Plc,
915 F. Supp. 2d 1138 (C.D. Cal. 2012) ...................................................................................10
Fox Television Stations, Inc. v. FilmOn X,
---F. Supp. 2d----, 2013 WL 4763414 (D.D.C. Sept. 5, 2013) ......................................3, 10, 11
Fox Television Stations, Inc. v. FilmOn X LLC,
--- F. Supp. 2d ---, 2013 WL 4852300 (D.D.C. Sept. 12, 2013) ................................................3
Goldsborough v. Marshall,
243 F.2d 240 (D.C. Cir. 1957) ...................................................................................................5
Griggs v. Provident Consumer Discount Co.,
459 U.S. 56 (1982) .....................................................................................................................4
Holland v. Nat’l Mining Ass’n,
309 F.3d 808 (D.C. Cir. 2002) .................................................................................................11
Humble Oil & Refining Co. v. Am. Oil Co.,
259 F. Supp. 559 (D. Mo. 1966) ................................................................................................3

ii

In re Pabst Licensing GmbH & Co. KG Litig.,
791 F. Supp. 2d 175 (D.D.C. 2011) ...........................................................................................9
Indus. Ass’n vs. Bd. of Governors of the Fed. Reserve Sys.,
628 F. Supp. 1438 (D.D.C. 1986) ..............................................................................................5
McGrath v. Potash,
199 F.2d 166 (D.C. Cir. 1952) ...................................................................................................8
New York State Ass’n for Retarded Children, Inc. v. Carey,
706 F.2d 956, 960, 967 (2d Cir. 1983) ......................................................................................4
Newton v. Consol. Gas Co.,
258 U.S. 165 (1922) ...............................................................................................................4, 5
Precision Instrument v. Auto. Maint. Mach.,
324 U.S. 806 (1945) ...................................................................................................................2
R.C. by Alabama Disabilities Advocacy Program v. Nachman,
969 F. Supp. 682 (M.D. Ala. 1997) ...........................................................................................3
Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367 (1992) ...................................................................................................................8
Secs. and Exchange Comm’n v. Lauer,
445 F. Supp. 2d 1362 (S.D. Fla. 2006) ......................................................................................3
Singh v. George Washington Univ.,
383 F. Supp. 2d 99 (D.D.C. 2005) .............................................................................................9
Small v. Operative Plasterers’ and Cement Masons’ Int’l Ass’n Local 200, AFL-CIO,
611 F.3d 483, 495 (9th Cir. 2010) .............................................................................................4
Stewart v. Panetta,
826 F. Supp. 2d 176 (D.D.C. 2011) ...........................................................................................9
Sys. Fed’n No. 91, Ry. Emp. Dept., AFL-CIO v. Wright,
364 U.S. 642 (1961) ...................................................................................................................8
Udall v. Littell,
366 F.2d 668 (D.C. Cir. 1966) ...................................................................................................2
WNET, Thirteen v. Aereo, Inc.,
712 F.3d 680 (2d Cir. Apr. 1, 2013) ................................................................................ passim
STATUTES
17 U.S.C. § 101 ..............................................................................................................................10

iii

17 U.S.C. § 502 ......................................................................................................................3, 5, 11
OTHER AUTHORITIES
Fed. R. Civ. Pro. 59(e) .....................................................................................................................5
Fed. R. Civ. Proc. 54(b) ...................................................................................................................9
Fed. R. Civ. Proc. 62(c) ...................................................................................................................4

iv

INTRODUCTION
In deliberate defiance of the preliminary injunction issued by this Court, FilmOn X has
recommenced its unauthorized retransmission of Plaintiffs’ copyrighted broadcast programming
in the Boston area.1 Now FilmOn X asks for an after-the-fact blessing of its contempt by seeking
modification of the preliminary injunction. But it is well-established that modification of an
equitable order should be denied where, as here, the requesting party is in violation of court
orders and comes to the court with unclean hands.
Moreover, FilmOn X’s motion to modify the scope of the injunction should be denied for
at least three additional reasons. First, FilmOn X’s pending appeal of the preliminary injunction
divested this Court of jurisdiction to modify it in the manner requested by FilmOn X.
Second, even if the Court were not divested of jurisdiction, FilmOn X has not met the
standard for modification or reconsideration. FilmOn X’s motion for modification rests solely
on a decision by Judge Nathaniel Gorton of the District of Massachusetts denying Hearst
Corporation’s request for a preliminary injunction against the Aereo Internet television service.
A decision by a co-equal court concerning different parties is not binding on this Court and does
not represent a change in controlling law that supports modification or reconsideration. None of
FilmOn X’s host of cases holds otherwise.
In addition to being non-binding, Judge Gorton’s decision provides no basis for this
Court to modify its preliminary injunction which was based on an extensive, independent
analysis of the Transmit Clause and its legislative history. Judge Gorton’s public performance
1

Declaration of Julie Shepard (“Shepard Decl.”), Ex. 1 (October 10, 2013 article reporting
FilmOn X’s statements that it intends to defy the preliminary injunction and to start transmitting
local broadcasts in Boston), Exs. 2 and 3 (October 11 and 14, 2013 screenshots of FilmOn X’s
website evidencing that FilmOn X recommenced its unauthorized streaming the Boston local
broadcasts of Fox, ABC, CBS and NBC).

1

analysis consists of a single paragraph. Hearst Op. (Exhibit A to FilmOn X’s Request for
Judicial Notice) at 9-13. He relies heavily and uncritically on the Second Circuit’s decisions in
Cablevision and Aereo II,2 which this Court considered and rejected in its analysis. Moreover, in
declining to follow the preliminary injunction decision in this case, Judge Gorton badly
misconstrued this Court’s analysis of why FilmOn X publicly performs Plaintiffs’ copyrighted
works as explained in greater detail below. Id. at 12. An incorrect and thinly-reasoned opinion
from the District of Massachusetts presents no basis for modification of this Court’s injunction.
Finally, principles of comity do not support modifying the preliminary injunction simply
because a co-equal district court in Boston in a case involving different parties came to a
different conclusion than this Court. The First Circuit has yet to address the Transmit Clause
issues presented here.
For all of these reasons, Plaintiffs respectfully request that the Court deny FilmOn X’s
motion.
ARGUMENT
I.

FILMON X’S UNCLEAN HANDS PREVENT IT FROM SEEKING
MODIFICATION OF THE SCOPE OF THE PRELIMINARY INJUNCTION
In its request for modification of the preliminary injunction, FilmOn X seeks equitable

relief from this Court. “A cardinal rule of equity is ‘he who comes into equity must come with
clean hands [i]t is a self-imposed ordinance that closes the door . . . to one tainted with
inequitableness or bad faith relative to the matter in which he seeks relief.’” Id. (quoting
Precision Instrument v. Automotive Maintenance Machinery, 324 U.S. 806, 814 (1945)); accord

2

Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)
(“Cablevision”); WNET, Thirteen v. Aereo, Inc., 712 F.3d 680 (2d Cir. Apr. 1, 2013)(“Aereo II”).

2

Udall v. Littell, 366 F.2d 668, 675 (D.C. Cir. 1966) (“It is elementary, of course, that one seeking
equity must do equity and must show ‘clean hands’ at the threshold”).
FilmOn X does not come to this Court with clean hands. FilmOn X has recommenced its
unauthorized retransmissions of local Boston broadcasts of Fox, ABC, CBS and NBC in open
contempt of the preliminary injunction. Shepard Decl., Exs. 1, 2 and 3. Where, as here, a
defendant has violated a court order, that defendant’s request to modify the court order should be
denied. Secs. and Exchange Comm’n v. Lauer, 445 F. Supp. 2d 1362, 1366 (S.D. Fla. 2006)
(denying request to modify where defendant had previously violated court orders); see also, R.C.
by Alabama Disabilities Advocacy Program v. Nachman, 969 F. Supp. 682, 688-89 (M.D. Ala.
1997) (denying, on both legal and equitable grounds, the defendant’s request for modification or
vacatur of a consent decree where it was “clear that defendant d[id] not come to the Court with
‘clean hands,” and admonishing that where the defendant’s “wrongdoing . . . helped create the
situation from which defendant seeks relief, the doors to a court of equity will not open”);
Humble Oil & Refining Co. v. Am. Oil Co., 259 F. Supp. 559, 566 (D. Mo. 1966) (refusing to
modify injunction where party’s misconduct, including “long-range effort[] to “modify the . . .
decree,” “f[ell] squarely within the doctrine of ‘unclean hands’”).
II.

FILMON X’S PENDING APPEAL OF THE SCOPE OF THE PRELIMINARY
INJUNCTION DIVESTED THIS COURT OF JURISDICTION TO MODIFY IT
This Court has twice rejected FilmOn X’s arguments that its preliminarily injunction

should be limited to the boundaries of the D.C. Circuit. In its initial preliminary injunction
decision the Court correctly held that § 502(b) commands a nationwide injunction and carved out
only of the Second Circuit because of the conflicting circuit-level authority there. See, Fox
Television Stations, Inc. v. FilmOn X, ---F. Supp. 2d----, 2013 WL 4763414 at *17-*18 (D.D.C.
Sept. 5, 2013). The Court reaffirmed that decision, when it denied FilmOn X’s motion for

3

reconsideration of the geographic scope of the preliminary injunction. Fox Television Stations,
Inc. v. FilmOn X LLC, --- F. Supp. 2d ---, 2013 WL 4852300, at *4 (D.D.C. Sept. 12, 2013).
FilmOn X has appealed both of those orders. Dkt. Nos. 46, 47.
The general rule is that a party’s filing of a notice of appeal divests the district court of
jurisdiction over the matters being appealed. See, e.g., Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982). FilmOn X concedes this. Mot. at 5, n.3. Relying upon numerous
inapplicable cases in which there was no pending appeal of the injunction or order at issue,3
FilmOn X’s argues that the Court retains jurisdiction to modify the geographic scope of the
preliminary injunction pursuant to Federal Rule of Civil Procedure 62(c). While it is correct that
Rule 62(c) allows for some modification of injunctions pending appeal in certain instances, the
“modification exception” is itself subject to limits. Specifically, a court may not modify an
injunction that has been appealed in such a manner as to adjudicate substantial rights directly
involved in the appeal. See, A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1099 (9th Cir.
2002) (citing Newton v. Consolidated Gas Co., 258 U.S. 165, 177 (1922) (citations omitted)).4

3

None of the following cases cited by FilmOn X involved a request to modify an injunction
while an appeal of the injunction was pending: Agostini v. Felton, 521 U.S. 203, 208-09, 215
(1997); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 371-72, 384 (1992); Sys. Fed’n No.
91, Ry. Emp. Dept., AFL-CIO v. Wright, 364 U.S. 642, 644-47, 650 (1961); Am. Horse
Protection Ass’n, Inc. v. Watt, 694 F.2d 1310, 1311, 1316 (D.C. Cir. 1982); McGrath v. Potash,
199 F.2d 166, 166-68 (D.C. Cir. 1952); Favia v. Indiana University of Pennsylvania, 7 F.3d 332,
334-35, 337 (3d Cir. 1993); New York State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d
956, 960, 967 (2d Cir. 1983); Coca-Cola Co. v. Standard Bottling Co., 138 F.2d 788, 788-89
(10th Cir. 1943).
4

Accord Small v. Operative Plasterers’ and Cement Masons’ Int’l Ass’n Local 200, AFL-CIO,
611 F.3d 483, 495 (9th Cir. 2010) (vacating modification order made during pendency of appeal
of preliminary injunction because, “[t]hough the court is allowed to ‘modify . . . an injunction on
. . . terms that secure the opposing party’s rights,’ Fed. R. Civ. P. 62(c), the court only ‘retains
jurisdiction during the pendency of an appeal to act to preserve the status quo’” (citation
omitted)).

4

In Newton, the United States Supreme Court held: “Undoubtedly, after appeal the trial court
may, if the purposes of Justice require, preserve the status quo until decision by the appellate
court . . . But it may not finally adjudicate substantial rights directly involved in the appeal.” 258
U.S. at 177. See also Goldsborough v. Marshall, 243 F.2d 240, 244 (D.C. Cir. 1957)
(recognizing that Newton limits the district court’s power where an appeal has been taken).
FilmOn X’s pending appeal encompasses this Court’s determination of the proper
geographic scope of the injunction under 17 U.S.C. § 502. Having taken steps that divested the
Court of jurisdiction to change the status quo as to the scope of the injunction, FilmOn X’s
request to modify that scope should be denied.
FilmOn X’s argument that its pending appeal has not divested the Court of jurisdiction to
modify the scope of the preliminary injunction rest on Industrial Association vs. Board. of
Governors of the Federal Reserve System, 628 F. Supp. 1438, 1440 n. 1 (D.D.C. 1986) and
Cobell v. Norton, 310 F. Supp. 2d 77, 83 (D.D.C. 2004). Mot. at 5, n. 3. These cases do not
assist FilmOn X. In Industrial Association, the pending appeal was from a judgment, not an
injunction. 628 F. Supp. at 1440-41, n.1. The injunction in that case was entered after the appeal
was filed as an adjunct to the enforcement of a judgment, which the plaintiff timely moved to
amend under Fed. R. Civ. Pro. 59(e). It was therefore exempt from the general rule divesting the
court of jurisdiction to modify a preliminary injunction pending appeal for reasons inapplicable
to this case. Id. Moreover, the new injunction in Industry Association merely “g[ave] effect to”
its “earlier ruling that [the enjoined party’s] commercial paper activities violate federal law” and
therefore involved the “court’s authority to issue injunctions in aid of its decrees” (id. at 1441),
in contrast to FilmOn X’s attempt to change the status quo by modifying an existing injunction
pending appeal.

5

Cobell is also inapposite. The district court in that case entered an injunction requiring
the Department of Interior (“DOI”) to disconnect computers that housed data in certain trust
accounts, pending a security determination. 310 F. Supp. 2d at 78-79. The injunction excepted
systems that DOI certified did not house or access trust data or were secure from Internet access
by unauthorized users. Id. The injunction thus created “at a minimum a two stage process.” Id.
at 83. The first stage required DOI to evaluate its systems and file certifications for systems it
contended should remain connected. Id. The second stage involved the court’s evaluation of
DOI’s certifications to determine whether the systems actually should remain connected,
according to the requirements of its original order. Id. DOI filed its certifications and appealed
the injunction before the district court made its determination as to which systems, if any, should
remain connected. Id. The district court found the DOI’s certifications woefully inadequate.
Id. Accordingly, the court ordered the disconnection of all computers systems, except those
essential for protection. Id. at 97. The subsequent order in Cobell, unlike the one FilmOn X
seeks now, merely implemented the original injunction (i.e., requiring disconnection of any
systems that DOI could not certify as meeting the Court’s criteria to remain connected) and
completed the second stage of the original injunction. Thus, neither Cobell nor Industrial
Association buttress FilmOn X’s argument that the Court should deviate from the general rule
that FilmOn X’s appeal of the preliminary injunction, including its scope, divested the Court of
jurisdiction to change it.
FilmOn X also cannot find support in this Court’s prior statements about FilmOn X’s
ability to seek modification in the future after denying FilmOn X’s first motion for
reconsideration. See Mot. at 3. Significantly, FilmOn X’s appeal was not pending when the

6

Court’s statements were made.5 Moreover, the Court did not suggest that it would modify the
preliminary injunction if any district court disagreed with its reasoning, as FilmOn X’s suggests.
See Mot. at 3. Rather, in denying FilmOn X’s first bid for reconsideration of the scope of the
preliminary injunction, the Court held that FilmOn X failed to meet the fundamental standards to
obtain modification as, among other things, FilmOn X “offered no ‘intervening change of
controlling law’ . . . and thus there is no reason for the Court to reconsider its Preliminary
Injunction.” Dkt. No. 41 at 8. The Court then noted that if that changed, FilmOn X could move
for modification. Id. (“If other courts issue contrary rulings, FilmOn X may file a motion to modify
this Court’s injunction.”) There has been no change in controlling law, see infra, Section III, and

there remains no basis for the Court to reconsider the scope of its preliminary injunction.
Finally, even assuming arguendo that FilmOn X’s pending appeal has not divested the
Court of jurisdiction to modify the preliminary injunction in the manner requested by FilmOn X,
FilmOn X’s authorities do not assist FilmOn X given that they are inapposite and involve sea
changes in law, such as changes in the controlling statute or similarly impactful events, that are

5

The Court cited to Favia v. Indiana University of Pennsylvania,7 F.3d 332, 337 (3d Cir. 1993)
in its decision denying FilmOn X’s motion for reconsideration [Dkt. No. 41, at 6] and FilmOn X
does so as well in its motion. Mot. at 5. While Favia supported the proposition for which this
Court cited it, it does not support FilmOn X’s current motion. As with most of FilmOn X’s other
cases, Favia did not involve a jurisdictional challenge to the district court’s authority to modify
an injunction to alter the status quo after a notice of appeal was on file. Moreover, the Favia
court actually ruled that modification was not warranted, explaining that “[t]he primary
justification for granting a motion to modify is to avoid the injustice of requiring a defendant to
continue complying with an injunctive order under circumstances that would have prevented its
entry in the first place.” Id. at 338-39. “Class certification,” the so-called new fact, “was not
such a change in circumstances.” Id. Similarly, here, the so-called “change in circumstances”
does not create an “injustice . . . requiring [FilmOn X] to continue complying with an injunctive
order under circumstances that would have prevented its entry.” Id. Accordingly, Favia does
not assist FilmOn X.

7

not present here. See Am. Horse Protection Ass’n, Inc. v. Watt, 694 F.2d 1310, 1316 (D.C. Cir.
1982) (Congress amended Wild Horse Act two years after injunction issued which impacted the
enforceability of the injunction ); McGrath v. Potash, 199 F.2d 166, 167-68 (D.C. Cir. 1952)
(injunction “should be vacated” given that its “statutory basis” was “removed by Congress”);
Agostini v. Felton, 521 U.S. 203, 215 (1997) (“significant change” in Establishment Clause
jurisprudence warranted modification of permanent injunction); System Fed’n No. 91, Ry. Emp.
Dept., AFL-CIO v. Wright, 364 U.S. 642, 650 (1961) (permitting modification of unions’ consent
decree in light of amendment to Railway Labor Act); Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367, 384 (1992) (“upsurge in . . . inmate population” might warrant modification of consent
decree requiring construction of new jail); Coca-Cola Co. v. Standard Bottling Co., 138 F.2d
788, 789 (10th Cir. 1943) (modification of consent decree was proper 16 years after it issued
where district court concluded that “conditions and circumstances and controlling facts of equity
had materially changed,” including the relevant law) (emphasis added).6
III.

JUDGE GORTON’S DECISION IS NOT A CHANGE IN CONTROLLING LAW
MERITING RECONSIDERATION
FilmOn X suggests that Judge Gorton’s denial of Hearst’s motion for preliminary

injunction against Aereo supports reconsideration of the preliminary injunction in this case under
6

FilmOn X also relies on the Second Circuit’s opinion in New York State Association for
Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983) for the sweeping statement
that the injunction should be modified to exclude the First Circuit because “[t]he power of a
court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.”
Mot. at 4. But like the majority of FilmOn X’s cases, Carey did not involve a jurisdictional
challenge to the district court’s authority to modify an injunction to alter the status quo based on
the filing of a notice of appeal. Moreover, in Carey one of the primary reasons the Second
Circuit found that amendment to a consent decree was proper was that the proposed modification
was “not in derogation of the primary objective of the decree.” 706 F.2d at 969 (emphasis
added). To the contrary, “the modification was essential to attaining” the goals set in the decree.
Id. Accordingly, Carey does not support FilmOn X.

8

Fed. R. Civ. Proc. 54(b). Mot. at 5, n.2. That is simply wrong. Judge Gorton’s decision is not a
“controlling or significant change in the law” which Rule 54(b) requires to justify
reconsideration. See, Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C.
2005); In re Pabst Licensing GmbH & Co. KG Litig., 791 F. Supp. 2d 175, 181 (D.D.C. 2011)
(Collyer, J.) (denying motion for reconsideration and citing standard that reconsideration may be
granted when there is “a controlling or significant change in the law”).
The decision in Singh is particularly instructive. In Singh, Judge Royce Lambert of the
District Court for the District of Columbia refused to reconsider his ruling on summary judgment
even though a judge in the Southern District of Ohio subsequently issued a contrary opinion on a
similar claim. Singh, 383 F. Supp. 2d at 103. The Singh Court found that because the Ohio
decision was “poorly reasoned on the one hand and non-binding on the other[,]” reconsideration
was not warranted. Id. The court explained further that “[d]istrict courts, and even circuit
courts, are free to disagree as they seek to apply to the law and to reach just results in their cases.
Our lower federal courts . . . are the laboratories for the law as it develops in response to
particular controversies. A disagreement between coequal courts in separate districts is no
grounds for reconsideration.” Id.
Here, as in Singh, Judge Gorton’s decision provides no basis for reconsideration. It is
virtually devoid of analysis, and, while Judge Gorton does not clearly set forth his reasoning, he
extensively cited precedent that this Court considered and rejected in the course of granting
Plaintiffs’ motion for preliminary injunction – i.e., the Second Circuit’s decisions in Cablevision
and Aereo II. See Stewart v. Panetta, 826 F. Supp. 2d 176, 178 (D.D.C. 2011) (denying motion
to reconsider because the court had already “addressed and distinguished” the cases relied on in
the case cited by the movant as the basis for reconsideration).

9

In addition to being thinly-reasoned and unpersuasive, Judge Gorton’s decision should be
rejected as a basis for reconsideration for another reason: he misread this Court’s opinion and the
Central District of California opinion in BarryDriller as holding that “what makes the
transmission public is not its [sic] intended audience of any given copy of the program but the
intended audience of the initial broadcast.” Hearst Op. at 12. Neither opinion says that. Rather,
this Court and the Central District of California held, consistent with the Transmit Clause, that a
service like FilmOn X publicly performs a copyrighted program by transmitting – through any
device or process – a performance of the program to the public. Fox Television Stations, Inc., --F. Supp. 2d ----, 2013 WL 4763414 at *13-14; Fox Television Stations, Inc. v. BarryDriller
Content Sys., Plc, 915 F. Supp. 2d 1138, 1143-45 (C.D. Cal. 2012).
Additionally, it appeared to be Judge Gorton’s understanding that Hearst – unlike the
Plaintiffs in this case – contended that under the Transmit Clause, “the relevant performance is
the copyrighted work.” Hearst Op. at 13. Based on his stated understanding of Hearst’s
contentions, Judge Gorton concluded that Hearst’s interpretation would read the word
“performance” out of the statute and decided not to adopt it. Id. Plaintiffs here have not argued
that the performance is the copyrighted work. The performance is the audiovisual rendering of
the program (i.e., the work), such as the broadcast of the program or the retransmission of the
program over the Internet. See 17 U.S.C. § 101 (to perform an audiovisual work is to “show its
images in any sequence or to make the sounds accompanying it audible”).7
For all of these reasons, Judge Gorton’s decision provides no basis for reconsideration of
this Court’s well-reasoned and carefully-considered decision.
7

Confusingly, and seemingly inconsistently, Judge Gorton later acknowledged that streaming a
program over the Internet is a performance. Id. at 16.

10

IV.

PRINCIPLES OF COMITY DO NOT WARRANT MODIFICATION OF THE
INJUNCTION
As this Court previously recognized, 17 U.S.C. § 502(b) commands a nationwide

injunction. FilmOn X, ---F. Supp. 2d---, 2013 WL 4763414 at *17-*18. The Court made an
exception to this mandate for the Second Circuit because its decision conflicts with the circuitlevel decision there, (i.e., Aereo II). Id. Because this Court’s decision did not conflict with the
law of any other circuit, the Court extended its preliminary injunction to cover all other
jurisdictions nationwide, outside of the Second Circuit. Id. (“As far as this Court is aware, its
decision does not conflict with the law of any other circuit . . . . Accordingly, the Court will
grant Plaintiffs’ request for nationwide relief except as the he Second Circuit, where Aereo II is
binding precedent.”)
It remains the case that this Court’s decision does not conflict with the law of any circuit,
other than the Second Circuit.8 FilmOn X is clearly wrong when it asserts that “Hearst v. Aereo
is the law of the First Circuit.” Mot. 2. It is a district court decision that Hearst is appealing to
the First Circuit.9 And Judge Gorton expressly confirmed that the First Circuit has not addressed
the issue of whether commercial services that capture and retransmit broadcasts of copyrighted
television programs over the Internet to their subscribers engage in public performance. Hearst
Op. at 10. Against this factual and procedural background, Holland v. National Mining
Association provides no support for FilmOn X’s comity arguments. That case involved a circuit8

FilmOn X confusingly cites to sections of Judge Gorton’s opinion concerning the supposed
law of other circuits on the issue of volitional conduct where there is a violation of the exclusive
right of reproduction. See Mot. at 4. As the preliminary injunction against FilmOn X concerns
public performance rights, not reproduction rights, FilmOn X’s statements are irrelevant and will
not be addressed.

9

Hearst Stations Inc. v. Aereo, Inc., No. 1:13-cv-11649-NMG, D. MA., Dkt. No. 73 (Notice of
Appeal, filed 10/10/2013).

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level opinion that directly contradicted the district court’s decision. 309 F.3d 808, 809, 814-815
(D.C. Cir. 2002). In this case, there is no new circuit-level authority that should cause this Court
to revisit either of its prior correct decisions that comity concerns do not affect the scope of the
preliminary injunction in any jurisdiction outside the Second Circuit.
Common Cause v. Judicial Ethics Committee is also inapposite. In that case, the same
parties were involved and subject to a inconsistent, binding decision from another court. 473 F.
Supp. 1251, 1252 (D.D.C. 1979) (“Because the defendants are presently bound by a prior order
of another federal court, and that order prohibits the disclosure which plaintiffs seek, this Court
is persuaded that the interests of comity require the dismissal of plaintiffs’ suit.”). No similar
facts are present here.
CONCLUSION
FilmOn X’s emergency motion for modification should be denied. FilmOn X seeks
equitable relief while tainted with unclean hands from its deliberate and ongoing defiance of this
Court’s preliminary injunction order. Moreover, its pending appeal of orders specifically
addressing the geographic scope of the injunction divests the Court of jurisdiction to modify the
scope of the injunction. Even if the Court reaches the merits of the motion, however, the
erroneous and thinly-reasoned decision by the District of Massachusetts in Hearst v. Aereo
provides no basis for modification or reconsideration of this Court’s orders and does not
implicate comity concerns.
Dated: October 15, 2013
/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
(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., Allbritton

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Communications Company, CBS
Broadcasting Inc., CBS Studios Inc., and
Gannett Co., Inc.

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