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

Filing 57

RESPONSE TO ORDER OF THE COURT re Order, to Show Casue Why Defendants Should Not be Held in Contempt of the September 5, 2013 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 Declaration John Ulin)(Garrett, Robert)

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.

DECLARATION OF JOHN C. ULIN IN SUPPORT OF PLAINTIFFS' RESPONSE TO
THE ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN
CONTEMPT OF THE SEPTEMBER 5, 2013 PRELIMINARY INJUNCTION

I, John C. Ulin, declare as follows:
1.

I am an attorney licensed to practice law in the State of California, and I am a

partner at Arnold & Porter LLP, counsel of record 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 Communications Company, CBS Broadcasting Inc., CBS Studios
Inc., and Gannett Co., Inc. (collectively, the "NBC Plaintiffs"). As used herein, the term
"Plaintiffs" means the NBC Plaintiffs and all the other plaintiffs in this action. I submit this
declaration in support of Plaintiffs' Response To The Order To Show Cause Why Defendants
Should Not Be Held In Contempt Of The September 5, 2013 Preliminary Injunction. I have
personal knowledge of the facts set forth in this declaration and, if called as a witness, I could
and would testify competently to such facts under oath.
2.

Attached to my declaration as Exhibit 1 is a true and correct copy of relevant

excerpts from the following article: Todd Spangler, Broadcasters Win Preliminary Injunction
Against Internet- Video Streamer FilmOn X, Variety (Sept. 5, 2013), available at

http://variety.com/2013/biz/news/fox-wins-preliminary-injunction-against-internet-videostreamer-filmon-x-1200600254/.

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed this 24th day of October, 2013 at Los Angeles, California.

1

EXHIBIT 1

Page 1 of 16

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Broadcasters Win Preliminary
Injunction Against InternetVideo Streamer FilmOn X
Email (mailto:?subject=Broadcasters Win Preliminary Injunction Against Internet-Video Streamer
FilmOn X&body=Check%20out%20this%20article%20from%20Variety%3A%20http%3A%2F%
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Producer Simon Andreae to Head Reality at Fox (EXCLUSIVE)
(http://variety.com/2013/tv/news/producer-simon-andreae-to-head-reality-at-fox-exclusive1200751017/)

(http://variety.com/2013/tv/news/fox-shuffles-almost-human-premiere-for-nfl-boost-1200749281/)
TV (HTTP://VARIETY.COM/V/TV/)06:03 pm

Fox Shuffles ‘Almost Human’ Premiere for NFL Boost (http://variety.com/2013/tv/news/foxshuffles-almost-human-premiere-for-nfl-boost-1200749281/)
The U.S. District Court for D.C. Circuit issued a preliminary injunction (http://variety.com/t/injunction/)
Thursday against FilmOn (http://variety.com/t/filmon/) X (http://variety.com/t/x/), barring the company
from redistributing TV broadcasters (http://variety.com/t/broadcasters/)’ signals over the Internet
(http://variety.com/t/internet/).
“This Court concludes that the Copyright Act (http://variety.com/t/copyright-act/) forbids FilmOn X
(http://variety.com/t/filmon-x/) from retransmitting Plaintiffs’ copyrighted programs over the Internet,”
U.S. District Judge Rosemary Collyer wrote in the decision granting TV broadcasters’ motion for a
preliminary injunction.

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The decision — which applies nationwide — has implications for Aereo (http://variety.com/t/aereo/), a
similar Internet streaming service sued by broadcasters. New York-based Aereo, whose backers
include IAC chairman Barry Diller, has won legal victories against broadcasters in New York federal
courts, including a decision in July by the Second Circuit Court of Appeals
(http://variety.com/2013/digital/news/fox-may-pursue-aereo-case-to-u-s-supreme-court1200563420/) denying the request by TV networks to shut down the service.
Plaintiffs in the FilmOn case include the four major national broadcast television networks —
ABC, CBS, Fox (http://variety.com/t/fox/), and NBC — as well as other distributors, rights holders and
D.C.-area television stations.
In a statement, Fox said, “We are pleased, but not surprised, that that the court recognized that the
commercial retransmission of our broadcast signal without permission or compensation is a clear
violation of the law. This decision should finally put the matter to rest, and will hopefully discourage
other illegal services from attempting to steal our content.”
Alki David (http://variety.com/t/alki-david/), CEO of FilmOn, said in an email to Variety that he
planned to appeal the decision.
“The judge is clearly in (the broadcasters’) pockets,” David wrote. “From the day they filed in DC I
suspected they had influence in the courts there. There is something so very rotten in corporate
America and it makes me sad. Anyway… I’m on my yacht in (the) Mediterranean at the moment so
they can kiss my hairy Greek ass. This is just a temporary setback we will win on appeal.”
In December 2012, U.S. District Judge George Wu granted an injunction preventing FilmOn
(previously known as “Aereokiller (http://variety.com/t/aereokiller/)”) from transmitting the station
signals in California and other states, although he refused to extend the ban nationwide. In his
decision, Wu ruled that what FilmOn was doing was a public performance, even if there were one-toone transmissions to private homes.
Both Aereo and FilmOn have argued that their services are legal because they use discrete,
individual antennas dedicated to specific users. The companies say they are effectively renting
access to antennas, while customers control the tuning and recording.
But Judge Collyer disagreed with that line of argument.

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“This system, through which any member of the public who clicks on the link for the video feed, is
hardly akin to an individual user stringing up a television antenna on the roof,” she wrote in the
decision. “FilmOn X, which is a commercial service retransmitting Plaintiffs’ television performances,
is in no meaningful way different from cable television companies, whose relationship with
broadcasters such as Plaintiffs was the primary motivation for the 1976 (Copyright) Act’s enactment.”

Filed Under:
Aereo (http://variety.com/t/aereo/)
Aereokiller (http://variety.com/t/aereokiller/)
Alki David (http://variety.com/t/alki-david/)
Broadcast News (http://variety.com/t/broadcast-news/)
Broadcast Tv (http://variety.com/t/broadcast-tv/)
broadcaster (http://variety.com/t/broadcaster/)
Broadcasters (http://variety.com/t/broadcasters/)
Copyright Act (http://variety.com/t/copyright-act/)
District 51 (http://variety.com/t/district-51/)
Filmon (http://variety.com/t/filmon/)
FilmOn X (http://variety.com/t/filmon-x/)
Fox (http://variety.com/t/fox/)
Injunction (http://variety.com/t/injunction/)
Internet (http://variety.com/t/internet/)
Internet television (http://variety.com/t/internet-television/)
Justin Bieber Video (http://variety.com/t/justin-bieber-video/)
Legal Tv (http://variety.com/t/legal-tv/)
Mr. X (http://variety.com/t/mr-x/)
Rosemary M. Collyer (http://variety.com/t/rosemary-m-collyer/)
Us Court Of Appeals (http://variety.com/t/us-court-of-appeals/)
Will Forte (http://variety.com/t/will-forte/)
Win Win (http://variety.com/t/win-win/)
x (http://variety.com/t/x/)
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Daniel Catchup5:48 am (http://variety.com/2013/biz/news/fox-wins-preliminary-injunction-against-internet-video-streamer-filmon-x(https://www.facebook.com/daniel.catchup.5) says:
September 6, 2013 at
1200600254/#comment-list-wrapper)

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