WPIX, Inc. et al v. IVI, Inc. et al

Filing 57

ANSWER to Amended Complaint with JURY DEMAND. Document filed by IVI, Inc.. Related document: 42 Amended Complaint,,,,,,, filed by NBC Universal, Inc., Disney Enterprises, Inc., Tribune Television Holdings, Inc., Office Of The Commissioner Of Baseball, Fox Television Stations, Inc., WGBH Educational Foundation, Twentieth Century Fox Film Corporation, Telefutura Network, WNET.ORG, WNJU-TV Broadcasting LLC, Telemundo Network Group LLC, Universal Network Television, LLC, THIRTEEN, WPIX, Inc., NBC Telemundo License LLC, Open 4 Business Productions LLC, Cox Media Group, Inc., NBC Studios, Inc., CBS Studios, Inc., Fisher Broadcasting-Seattle TV, L.L.C., Public Broadcasting Service, Tribune Television Northwest, Inc., MLB Advanced Media, L.P., American Broadcasting Companies, Inc., Univision Television Group, Inc., The Univision Network Limited Partnership, CBS Broadcasting Inc., The CW Television Stations Inc..(Bierman, Ellen)

WPIX, Inc. et al v. IVI, Inc. et al

Doc. 57

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WPIX, INC., ET AL, Plaintiffs, v. IVI, INC. and TODD WEAVER, Defendants. 10 Civ. 7415 (NRB)

ANSWER TO FIRST AMENDED COMPLAINT Defendants ivi, Inc. and Todd Weaver answer the complaint as follows. 1. The Defendants admit that on September 13, 2010 ivi began making secondary

transmissions of primary transmissions that originated with one or more of the Plaintiffs, including transmissions from stations located in New York, Seattle, Los Angeles, and Chicago. The Defendants admit that express consent was not obtained, but deny that consent is required as a result of the statutory license under the Copyright Act. The Defendants deny all other allegations of paragraph 1 of the complaint. 2. The Defendants lack information concerning whether any of the plaintiffs actually

own any copyrighted programming at issue. The Defendants admit only that ivi offers access to television content previously broadcast by one or more of the plaintiffs and that such access was not expressly authorized by the Plaintiffs. The Defendants deny all other allegations of paragraph 2 of the complaint. 3. The Defendants deny the allegations of the first sentence of paragraph 3. The

Defendants admit only that ivi plans to offer secondary transmissions of broadcasts from other cities and to deliver content to mobile and set-top box devices, and deny all other allegations of paragraph 3 of the complaint.

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Dockets.Justia.com

4. 5.

The Defendants deny paragraph 4 of the complaint. The Defendants admit that certain Plaintiffs demanded that ivi cease its television

services and that ivi filed a complaint in the Western District of Washington a week before the Plaintiffs filed the present action here. The Defendants admit that the complaint was dismissed on January 20, 2011. The Defendants further admit that they were and remain "open to engaging in discussions" to explore direct contractual agreements with the plaintiffs, and that such has at all times been genuine. The Defendants deny all other allegations of paragraph 5 of the complaint. 6. The Defendants admit only that the Copyright Act includes a statutory license

allowing ivi to make secondary transmissions of original primary transmissions of broadcast television. The Defendants further admit that ivi claims that it qualifies for a compulsory license and is not governed by the FCC as set forth in the second and third sentences of paragraph 6. The Defendants deny all other allegations of paragraph 6 of the complaint. 7. 8. The Defendants deny paragraph 7 of the complaint. The Defendants admit that the Plaintiffs ask for relief in the complaint, but deny

the Plaintiffs are entitled to such relief. Jurisdiction and Venue 9. 10. 11. Admitted. Admitted. The Defendants lack information regarding the ownership of the copyrighted

materials at issue, and admit only that ivi captures the signals of programming originally transmitted by broadcast stations in this District. The Defendants lack information regarding the headquarters of the Plaintiffs. The Defendants deny all other allegations of paragraph 11 of the complaint.

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The Parties 12. The Defendants admit only that there are several Plaintiffs and that ivi is making

secondary transmissions of broadcasts originating with some of the Plaintiffs. The Defendants deny all other allegations of paragraph 12 of the complaint. 13. paragraph 13. 14. paragraph 14. 15. paragraph 15. 16. paragraph 16. 17. paragraph 17. 18. paragraph 18. 19. paragraph 19. 20. paragraph 20. 21. paragraph 21. 22. paragraph 22. 23. paragraph 23. The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of

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24. paragraph 24. 25. paragraph 25. 26. paragraph 26. 27. paragraph 27. 28. paragraph 28. 29. paragraph 29. 30. paragraph 30. 31. paragraph 31. 32. paragraph 32. 33. paragraph 33. 34. paragraph 34. 35. paragraph 35. 36. paragraph 36.

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

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37. paragraph 37. 38. paragraph 38. 39. paragraph 39. 40. paragraph 40. 41.

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants lack information sufficient to admit or deny the allegations of

The Defendants deny that ivi currently has 12 full time employees, but admits the

remainder of paragraph 41. 42. The Defendants admit only that Weaver is ivi's founder and chief executive

officer and a resident of Seattle, Washington, but deny all remaining allegations of paragraph 42 of the complaint. Nature of Alleged Claims 43. 44. 45. Admitted. Admitted. The Defendants admit the allegations of the first two sentences of paragraph 45.

The Defendants deny the third sentence of paragraph 45. 46. The Defendants admit only that express authorization has not been given, but

deny that any such authorization is required. 47. The Defendants admit that ivi plans to expand its service to additional markets

and platforms, but deny all other allegations of paragraph 47. 48. The Defendants admit the first two sentences of paragraph 48 as applied to ivi,

but deny the allegations as applied to Weaver. The Defendants deny the last two sentences of paragraph 48.

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49.

The Defendants deny their lawsuit was improper, but otherwise admit the

allegations of paragraph 49. 50. Denied. Allegations related to Weaver 51. With respect to the first sentence of paragraph 51, the Defendants admit only that

Weaver was personally involved in the enumerated activities, but deny all other allegations, and further deny that ivi's service is infringing. With respect to the last sentence of paragraph 51, the Defendants admit only that Weaver spent several years with a team developing the ivi service, that he supervised that team, and that he has an ownership interest in ivi. The Defendants deny all remaining allegations. 52. The Defendants lack information regarding what is meant by "primary actor" and

further deny there is any infringing activity, and therefore deny the allegations of paragraph 52. 53. The Defendants admit only that Weaver initially scheduled appearances in New

York City and other cities in relation to Internet television, but specifically deny that Weaver appeared in New York. 54. The Defendants deny that Weaver released statements in his individual capacity.

The Defendants admit that ivi issued press releases and that the press releases speak for themselves as to their content. 55. The Defendants deny that Weaver released statements in his individual capacity.

The Defendants admit that ivi issued press releases and that the press releases speak for themselves as to their content. 56. The Defendants deny that Weaver released statements in his individual capacity.

The Defendants admit that ivi issued press releases and that the press releases speak for themselves as to their content.

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57.

The Defendants deny that Weaver released statements in his individual capacity.

The Defendants admit that ivi issued press releases and that the press releases speak for themselves as to their content. 58. The Defendants deny that Weaver released statements in his individual capacity.

The Defendants admit that ivi issued press releases and that the press releases speak for themselves as to their content. Count One 59. 60. paragraph 60. 61. paragraph 61. 62. paragraph 62. 63. The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants lack information sufficient to admit or deny the allegations of The Defendants incorporate by reference their answers above. The Defendants lack information sufficient to admit or deny the allegations of

paragraph 63 concerning specific works allegedly owned by the Plaintiffs. The Copyright Act speaks for itself as to its terms. 64. The Defendants lack information sufficient to admit or deny the allegations of

paragraph 64 concerning specific works allegedly owned by the Plaintiffs. The Copyright Act speaks for itself as to its terms. 65. The Defendants admit only that express authorization has not been given, but

deny that any such authorization is required. 66. 67. 68. 69. Denied. Denied. Denied. Denied.

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Count 2 70. 71. The Defendants incorporate by reference their answers above. Denied. Demand for Jury The Defendants demand a jury trial. Affirmative Defenses 1. This Court lacks personal jurisdiction over Defendant Weaver. 2. Defendant Weaver is not personally liable for any conduct of ivi. 3. ivi's secondary transmissions do not infringe any copyrights in accordance with the statutory licensing provisions of the Copyright Act.

RESPECTFULLY SUBMITTED this 25th day of March, 2011. BLACK LOWE & GRAHAMPLLC

S/ Ellen M. Bierman Ellen M. Bierman, WSBA No. 23,224 Email: [e-mail] Lawrence D. Graham, WSBA No. 25,402 Email: [e-mail] 701 Fifth Avenue, Suite 4800 Seattle, Washington 98104 T: 206.381.3300 F: 206.381.3301

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Certificate of Service
I certify that on March 25, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following. A courtesy copy was sent via US Mail.

Peter L. Zimroth Arnold & Porter LLP 399 Park Avenue New York, NY 202.715.1000 [e-mail] Robert A. Garrett Hadrian R. Katz C. Scott Morrow Arnold & Porter, LLP 555 Twelfth Street, NW Washington, DC 20004 202.942.5000 [e-mail] [e-mail] [e-mail]
s/ Sarah Gist

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