Filing 54

ORDER denying 52 Defendants' Motion to Modify preliminary injunction and requiring Defendants to show cause by October 21, 2013 why they should not be held in contempt. Signed by Judge Rosemary M. Collyer on 10/15/2013. (KD)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) FOX TELEVISION STATIONS, INC., ) et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 13-758 (RMC) ) FILMON X LLC, et al., ) ) Defendants. ) _________________________________ ) ORDER Defendants, referred to collectively as FilmOn X, are: FilmOn X LLC (formerly known as Aereokiller); Networks, Inc.;, Inc.; and Inc. They filed an emergency motion to modify the Preliminary Injunction issued on September 5, 2013, claiming that this Court must follow a new ruling from the District of Massachusetts involving the same legal issue but different parties. Plaintiffs oppose. 1 As explained below, the motion is denied. FilmOn X alleges that the Preliminary Injunction should be modified due to an October 8, 2013 Order issued by Judge Gorton in the District of Massachusetts in Hearst Stations, Inc., d/b/a/ WCVB-TV v. Aereo, Inc., Civ. No. 13-11649-NMG (D. Mass.) (copy filed at 1 Plaintiffs are: Fox Television Stations, Inc.; Twentieth Century Fox Film Corporation; Fox Broadcasting Company, Inc.; 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 Communications Company; Gannett Co., Inc.; CBS Broadcasting, Inc.; and CBS Studios. 1 Dkt. 52-1, Ex. A) (Hearst Order). 2 The district court in Hearst dealt with copyright infringement issues similar to those already addressed here and came to the opposite conclusion. Hearst denied an over-the-air broadcast network’s request for preliminary injunction against Aereo, Inc., a direct competitor of FilmOn X, finding that the broadcast network was not likely to succeed on the merits as Aereo’s “interpretation [of 17 U.S.C. § 106] is a better reading of the statute.” Hearst, Civ. No. 13-11649-NMG, at *13. FilmOn X has provided no basis for the Court to modify the Preliminary Injunction. See Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (reconsideration may be permitted when a court has patently misunderstood a party, has made a decision outside the adversarial issues presented to the court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts has occurred since the submission of the issue to the court.) FilmOn X erroneously refers to the Hearst decision as the “law of the First Circuit.” Emergency Mot. [Dkt. 52] at 2. In fact, Hearst was decided by a district court, not by the First Circuit. A contrary decision by a co-equal court in another district involving different parties does not represent a change in controlling law. Further, it appears that FilmOn X may be acting in defiance of this Court’s Preliminary Injunction, possibly by retransmitting Plaintiffs’ copyrighted broadcast programming in the Boston area. See Opp’n to Emergency Mot. [Dkt. 53]. Accordingly, it is hereby ORDERED that FilmOn X’s emergency motion to modify the Preliminary Injunction issued on September 5, 2013 is DENIED; and it is 2 The Court takes judicial notice of the Hearst Order as requested by FilmOn X. See Fed. R. Civ. P. 201; Covad Commc’ns Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (permitting judicial notice of facts contained in public records of other proceedings). 2 FURTHER ORDERED that no later than October 21, 2013, FilmOn X shall show cause, in writing, why it should not be held in contempt of the September 5, 2013 Preliminary Injunction. Date: October 15, 2013 /s/ ROSEMARY M. COLLYER United States District Judge 3

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