FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al
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)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FOX TELEVISION STATIONS, INC., )
Civil Action No. 13-758 (RMC)
FILMON X LLC, et al.,
Defendants, referred to collectively as FilmOn X, are: FilmOn X LLC (formerly
known as Aereokiller); FilmOn.tv Networks, Inc.; FilmOn.tv, Inc.; and FilmOn.com 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
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
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.
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
ORDERED that FilmOn X’s emergency motion to modify the Preliminary
Injunction issued on September 5, 2013 is DENIED; and it is
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).
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
Date: October 15, 2013
ROSEMARY M. COLLYER
United States District Judge
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