Dish Network L.L.C. v. ABC, Inc. et al

Filing 12

DECLARATION of Elyse D. Echtman in Support re: 3 Order to Show Cause,,,,,,,,. Document filed by Dish Network L.L.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Echtman, Elyse)

EXHIBIT 4

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
I (a) PLAINTIFFS (Check box if you are representing yourself 0)
FOX BROADCASTING COMPANY, INC., TWENTIETH CENTURY FOX
FILM CORP., and FOX TELEVISION HOLDINGS, INC.

DEFENDANTS
DISH NETWORK L.L.C. and DISH NETWORK CORP.,

(b) Attorneys (Finn Name, Address and Telephone Number. If you are representing
yourself, provide same.)

Attorneys (If Known)

JENNER & BLOCK LLP, Richard L. Stone (Bar No. 11(022)
633 West 5th Street, Suitc 3600, Los Angeles, CA 90071
[phone]

III, CITIZENSHIP OF PRINCIPAL PARTIES - For Diversity Cases Only
(Place an X in one box for plaintiff and one for defendant.)

II, BASIS OF JURISDICTION (Place an X in one box only.)

o

I U.S Government Plaintiff

01 U.S. Government Defendant

li3 Federal Question (U.S.
Government Not a Party)

PTF DEF
01 01

Citizen of This State

04 Diversity (Indicate Citizenship Citizen of Another State
of Parties in Item III)

Incorporated or Principal Place
of Business in this State

PTF
04

DEF
04

02

02

Incorporated and Principal Place 05
of Business in Another State

05

Citizen or Subject of a Foreign Countly 0 3

0 3

Foreign Nation

06

06

IV, ORIGIN (Place an X in one box only.)
li'l Original
Proceeding

02 Removed from
State Court

V, REQUESTED IN COMPLAINT:

03 Remanded from
Appellate Court

04 Reinstated or
Reopened

JURY DEMAND: flyes

CLASS ACTION under F,R.CP, 23: 0 Yes

05 Transferred from another district (specify):

06 MultiDistrict
Litigation

o7

Appeal to District
Judge from
Magistrate Judge

0 No (Check 'Yes' only ifdemanded in complaint)

o MONEY DEMANDEIHN COMPLAINT: S

riNo

VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)
17 U.S.c. 10 I, ct seq.
VII, NATURE OF SUIT (Place an X ID one boll only.)

1~~li~N~~~:i:. , .'

OTHER
0400 State Reapportionment
0410 Antitrust
0430 Banks and Banking
0450 Comrnerce/ICC
Rates/etc.
0460 Deportation
0470 Racketeer Influenced
and Corrupt
Organizations
0480 Consumer Credit
0490 Cable/Sat TV
0810 Selective Service
0850 Securities!Commodities!
Exchange
0875 Customer Challenge 12
USC 3410
0890 Other Statutory Actions
0891 Agricultural Act
0892 Economic Stabilization
Act
0893 Environmental Matters
0894 Energy Allocation Act
0895 Freedom oflnfo. Act
0900 Appeal of Fee Detennination Under Equal
Access to Justice
0950 Constitutional ity of
State Statutes

Insurance
Marine
Miller Act
Negotiable Instrument
RecoveTY of
Overpayment &
Enforcement of
Judgment
lSI Medicare Act
152 RecoveTY of Defaulted
Student Loan (Excl.
Veterans)
153 RecoveTY of
Overpayment of
Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product
Liability
o I % Franchise
.REALJ!k.QPEltT¥.210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

FOR OFFICE USE ONLY:

,-

Case Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

110
120
130
140
150

Airplane
Airplane Product
Liability
Assault. Libel &
Slander
Fed. Employers'
Liability
Marine
Marine Product
Liability
Motor Vehicle
Motor Vehiele
Product Liability
Other Personal
Injury
Personal InjuryMed Malpractice
Personal InjuryProduct Liability
Asbestos Personal
Injury Product
Liability

PERSONAL
PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
Property Damage
Product

423 Withdrawal 28
USC 157
Y;'··.CiV'J4~~'2~""~
441 Voting
442 Employment
443 Housing/Accommodations
Welfare
American with
Disabilities Employment
-.tMM1oRMW~~,;
American with
462 Naturalization
Disabilities Application
Other
Habeas CorpusOther Civil
Alien Detainee
Rights
Other Immigration
Actions

'.

Labor Standards
Motions to
Vacate Sentence
Habeas Corpus
General
535 Death Penalty
540 Mandamus!

Agriculture
Other Food &
Drug
Drug Related
Seizure of
Property 21 USC
881
Liquor Laws
R.R. & Truck
Airline Regs
Occupational
Safety !Health
Other

Act
LaborfMgmt
Relations
LaborfMgmt
Reporting &
Disclosure Act
Railway Labor Act
Other Labor

Taxes (U.S. Plaintiff
or Defendant)
IRS-Third Party 26
USC 7609

CV12- 04529

AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW,
CV-71 (05108)

CIVIL COVER SHEET

Page I of2

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? IlfNo 0 Yes
If yes. list case number(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

!!I

VIIJ(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case?
No 0 Yes
If yes. list case number(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply)

0 A. Arise from the same or closely related transactions, happenings. or events; or
DB. Call for determination of the same or substantially related or similar questions of law and fact; or

o C.
o D.

For other reasons would entail substantial duplication of labor if heard by different judges; or
Involve the same patent, trademark or copyright, and one of the factors identified above in a, b or c also is present.

IX. VENUE: (When completing the following information. use an additional sheet if necessary.)
(a)
0

List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiffresides.
Check here if the government, its agencies or el11!lloyees is a named plaintiff. If this box is checked, go to item (b).

County in this District:'

California County outside of this District; State, if other than California; or Foreign Country

Los Angeles (Fox Broadcasting Company)
Los Angeles (Twentieth Century Fox Film Corp.)
Los Angeles (Fox Television Holdings, Inc.)
(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.
0
Check here if the government, its agencies or el11Jlloyees is a named defendant. If this box is checked, go to item(c}.
County in this District:"

California County outside of this District; State, if other than California; or Foreign Country

Los Angeles (Dish Network L.L.C.)
Los Angeles (Dish Network Corporation)

(c)

List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.
Note: In land condemnation cases, use the location ofthe tract ofland involved

County in this District:"

California County outside ofthis District; State, if other than California; or Foreign Country

Los Angeles

* Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties
Note: In land condemnation cases use the location of the tract ofland inv
X. SIGNATURE OF ATTORNEY (OR PRO PER):I-..w::::::E...::.....;!.....:"--4-_---:~_ _ _ _ _ _ Date 5/24/2012
Notice to CounsellParties: The CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings
or other papers as required by law. This form. approved by the Judicial Conference of the Vnited States in September 1974, is required pursuant to Local Rule 3-1 is not filed
but is used by the Clerk ofthe Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code

Abbreviation

Substantive Statement of Cause of Action

861

HIA

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act. as amended.
Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the
program. (42 U.S.C. 1935FF(b»

862

BL

All claims for "Black Lung" benefits under Title 4. Part B. of the Federal Coal Mine Health and Safety Act of 1969.
(30 V.S.c. 923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as
amended; plus all claims filed for child's insurance benefits based on disability. (42 V.S.c. 405(g»

863

D1WW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 ofthe Social Security
Act, as amended. (42 V.S.c. 405(g»

864

SSID

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security
Act, as amended.

865

RSI

All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42

V.S.C (g»

CV-71 (05/08)

CIVIL COVER SHEET

Page 2 of2

1

2
3
4

5
6

•

•

JENNER & BLOCK LLP
Richard L. Stone (Bar No. 110022)
Andrew J. Thomas (Bar No. 159533)
David R. Singer (Bar No. 204699)
Amy M. Gallegos (Bar No. 211319)
633 West 5th Street, Suite 3600
Los An--s~les, CA 90071
[e-mail]
[e-mail]
[e-mail]
[e-mail]

:~

"

r·)

---<

'- C
r- _

,-

.'

( .. J

UJ

7

8

Attorneys for Plaintiffs
Fox Broadcasting Company, Twentieth Century
Fox Film Corp., and Fox Television Holdings, Inc.

9

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12
13
14

FOX BROADCASTING COMPANY,
TWENTIETH CENTURY FOX FILM
CORPORATION and FOX
TELEVISION HOLDINGS, INC.

15
16
17
18

COMPLAINT FOR COPYRIGHT
INFRINGEMENT AND BREACH
OF CONTRACT

Plaintiffs,
v.

DEMAND FOR JURY TRIAL

DISH NETWORK L.L.C., and
DISH NETWORK CORPORATION,

19

Defendants.

20
21

22
23
24
25
26
27
28

Plaintiffs Fox Broadcasting Company, Twentieth Century Fox Film
Corporation, and Fox Television Holdings, Inc. (collectively, "FOX") allege the
following

against Dish Network L.L.C.

(collectively, "DISH"):

and Dish Network Corporation

•

1

2

1.

•

NATURE OF THE ACTION

FOX, as well as the other three major broadcast television networks -

3

ABC, CBS and NBC -

4

programming as it is aired through owned-and-operated and affiliated local

5

television stations across the country. FOX also has agreed to license primetime

6

broadcast programming to DISH for video-on-demand service to consumers under

7

certain conditions, including prohibiting fast forwarding through commercials.

8

Commercial advertising is vital to broadcast television, as the robust choices and

9

quality of primetime programming, including such hit shows as FOX's Glee, The

10

Simpsons, Bones, and Touch, are possible only because they are supported by the

11

advertising revenues generated from television commercials.

12

2.

licenses DISH to retransmit primetime network

Recently, DISH - in violation of the copyright laws and its license

13

agreement with FOX - launched its own bootleg broadcast video-on-demand

14

service called PrimeTime Anytime that is available to top-tier DISH subscribers

15

who lease the Hopper set top box from DISH. Once enabled, PrimeTime Anytime

16

makes an unauthorized copy of the entire primetime broadcast schedule for all four

17

major networks every night. DISH advertises this unauthorized library, which is

18

available for eight days and includes approximately 100 hours of programming, as

19

providing "on demand access" to that programming. To make matters worse, DISH

20

operates its bootleg PrimeTime Anytime service so that the copies it makes are

21

viewable commercial free.

22

3.

This lawsuit is not about DISH enhancing consumer choice.

By

23

stealing FOX's broadcast programming to create a bootleg video-on-demand

24

service for all network primetime programming, DISH is undermining legitimate

25

consumer choice by undercutting authorized on-demand services and by offering a

26

service that, if not enjoined, will ultimately destroy the advertising-supported

27

ecosystem that provides consumers with the choice to enjoy free over-the-air,

28

varied, high-quality primetime broadcast programming.
- 22104618.1

Nor is this case about

•

•

1

traditional DVRs used by consumers to time-shift individual television programs

2

that they select and record, which FOX is not challenging in this action and which

3

are completely different from DISH's unauthorized Primetime Anytime service.
4.

4

FOX and its affiliated companies invest hundreds of millions of dollars

5

each year to create and deliver quality primetime television programs.

6

programs are available over the air free of charge to anyone in the United States.

7

FOX, like all major broadcast networks, is able to offer such copyrighted

8

programming to the public for free over the airwaves because the production,

9

exhibition, and licensing of the programs is supported by commercial advertising.

10

Quite simply, advertisements provide the lion's share of funding for the

11

copyrighted programs that the public enjoys at no direct charge.

12

5.

These

There· is' a legitimate and varied market for licensed servIces that

13

provide video-on-demand and programs for instant viewing over the Internet or on

14

mobile devices. FOX's primetime programming is available on demand over the

15

Internet on its website (fox. com), and on Hulu (Hulu.com), and FOX also licenses

16

its programming to Amazon and iTunes, among others, which provide consumers

17

with on-demand access to the programming. FOX's primetime programming is

18

available to Hulu Plus subscribers in a reduced-commercial format, and available

19

commercial-free to consumers who purchase it through Amazon and iTunes. This

20

puts the lie to DISH's claim that its unauthorized and unlicensed video-on-demand

21

service is somehow necessary to enhance "consumer choice." FOX also makes

22

video-on-demand content available to cable and satellite providers such as DISH,

23

but rather than use and comply with its license from FOX for video-on-demand

24

content, DISH chose to steal copyrighted programming to make its own version to

25

interfere with legitimate markets and services.
6.

26
27

DISH's unlawful conduct does not stop there. DISH's Sling Adapter

redistributes and streams FOX's programming over the Internet in violation of

28
-32104618.1

•

•

1

copyright law and DISH's agreements with FOX. In doing so, it competes unfairly

2

with licensed providers such as iTunes and Amazon.

3

7.

In sum, DISH, like every other cable and satellite television

4

distributor, received narrow permission to retransmit the signals that include

5

FOX's primetime broadcast.

6

willfully took advantage of its position to make and distribute unauthorized copies

7

of FOX's primetime programming and render them commercial-free on playback,

8

so

9

COMMERCIAL-FREE TV." But DISH has no right to copy and distribute FOX's

10

programs through an unauthorized video-on-demand service. Nor does DISH have

11

the right to distribute FOX's programs over the Internet, or to mobile devices. It is

12

up to FOX - the owner of these valuable rights - to make them available to

13

licensees and consumers under terms and conditions set by FOX, not DISH.

that DISH

could

Unlike every other distributor, however, DISH

advertise

to

the

world

that:

"DISH CREATED

14
15

THE PARTIES
8.

16

Plaintiff Fox Broadcasting Company ("FBC") is a Delaware

17

corporation with its principal place of business at 10201 West Pico Blvd., Los

18

Angeles, California.

19

television network with 203 affiliates reaching approximately 99% of all United

20

States households.

21

9.

FBC operates the FOX Network, a national broadcast

Plaintiff Twentieth Century Fox Film Corp. ("Twentieth Century

22

F ox") is a Delaware corporation with its principal place of business at 10201 West

23

Pico Blvd., Los Angeles, California. Twentieth Century Fox owns copyrights in

24

certain original primetime television programs broadcast on the FOX Network and

25

distributed via other media in the United States and around the world.

26

10.

Plaintiff Fox Television Holdings, Inc. ("Fox TV Holdings")

IS

a

27

Delaware corporation with its principal place of business at 10201 West Pi co Blvd.,

28

Los Angeles, California. Fox TV Holdings is the parent company of the owned-42104618.1

•

•

1

and-operated local broadcast stations that carry the pnme time programmIng

2

licensed by the FOX Network.

3

11.

On information and belief, Defendant Dish Network L.L.C. (Dish

4

Network) is a Colorado limited liability company with its principal place of

5

business at 9601 South Meridian Blvd., Englewood, Colorado. Dish Network is a

6

multichannel video provider, offering television, movies and sports programming

7

through a Direct Broadcast Satellite system to subscribers who pay fees to Dish

8

Network to receive its service. Dish Network receives and retransmits the signals

9

of local FOX stations to its subscribers pursuant to a Retransmission Consent

10

Agreement entered in 2002 with Fox TV Holdings (the "Retransmission Consent

11

Agreement"), most recently amended in 2010.

12

12.

On information and belief, Defendant Dish Network Corporation

13

("Dish Corp.") is a Nevada Corporation with its principal place of business at 9601

14

South Meridian Blvd., Englewood Colorado.

15

Network is wholly owned by Dish Corp.

16

13.

On information and belief, Dish

On information and belief, each of the defendants was the agent,

17

joint venturer and/or employee of each of the remaining defendants, and in doing

18

the things hereinafter alleged, each was acting within the course and scope of said

19

agency, employment and joint venture with the advance knowledge, acquiescence,

20

and subsequent ratification of each and every remaining defendant.

21
22

JURISDICTION AND VENUE

23

14.

This civil action seeks injunctive relief, compensatory damages, and

24

statutory damages for copyright infringement under the Copyright Act, 17 U.S.C.

25

101, et seq., and for breach of contract.

26

15.

This Court has exclusive subject matter jurisdiction over the Copyright

27

Act claims pursuant to 28 U.S.C. Sections 1331 and 1338(a), and has pendent

28

jurisdiction over the state law claims under 28 U.S.C. Section 1367.
- 52104618.1

1
2

16.

•

•

This Court has personal jurisdiction over DISH because it does

continuous, systematic, and routine business in California.

3

17.

Venue is proper in this Court under 28 U.S.C. Sections 1391(b) and

4

1400 because a substantial part of the acts of infringement complained of herein

5

occurred and will continue to occur in this district, and because the Court has

6

personal jurisdiction over the parties.

7

8
9

GENERAL ALLEGATIONS

A.

10

FOX's Copyrighted Primetime Programming
18.

FOX is the legal or beneficial owner of the copyrights in numerous

11

primetime programs that have been, or will be, exhibited on the FOX Network (the

12

"FOX Programs"). The FOX Programs include popular and critically-acclaimed

13

television series such as Glee, The Simpsons, Family Guy, Touch, and Bones. A

14

non-exhaustive list identifying representative samples of the FOX Programs is

15

attached hereto as Exhibit A.

16

19.

Each FOX Program is a copyrighted work pursuant to Section 102 of

17

the Copyright Act, 17 U.S.C. § 102. The relevant copyrights have been registered

18

with the United States Copyright Office or will be the subject of an application for

19

registration filed with the Copyright Office.

20

20.

FOX broadcasts the FOX Programs over the air across the United

21

States. The cost of producing, exhibiting, and licensing the FOX Programs is paid

22

for primarily by revenues from the advertisers whose commercials are shown

23

during the programs.

24

B.

25

Commercial Advertising and the Broadcast Television Business Model
21.

Broadcast television, sometimes called "free television" is transmitted

26

over the airwaves by local television stations. The business model for broadcast

27

television is predicated on the sale of commercial advertisements that appear during

28
-62104618.1

•

•

1

periodic breaks in a particular program. Advertisers purchase commercial time or

2

"spots" to promote their own products or services.

3

22.

Television advertisers pay more money to have their advertisements

4

featured on television programs with higher viewership. Advertisers also rely on

5

industry research and data that measure the number of viewers who actually view

6

the commercials during a particular program (sometimes called the number of

7

"impressions"). "Prime time" is the block of the television programming schedule

8

that attracts the most viewers, and advertisers therefore are willing to pay the

9

highest prices to have their commercials shown during this time.

Television

10

networks and local broadcast stations generally derive significant percentages of

11

their advertising revenues from selling the right to advertise before, during, or

12

immediately after the primetime programming airs. Advertisers will not pay, or

13

will pay less, to have their advertisements placed with and around FOX's television

14

programming if the advertisements will be invisible to viewers.

15

23.

Broadcast television networks such as FOX also earn revenues from

16

retransmission consent agreements with various cable systems, satellite television

17

services, and other multichannel video programming distributors, all of whom pay a

18

fee for the right to retransmit broadcast television signals to their own subscribers.

19

However, the cost of producing high quality primetime programming such as the

20

Fox Programs is financed largely by advertising revenues.

21

advertising revenues, the free broadcast television business model in the United

22

States would collapse.

23

C.

24

If there were no

Secondary Markets for the Distribution and Sale of the FOX Programs

24.

FOX's business model - which is based on industry custom and

25

practice - further monetizes FOX's content by, among other things, distributing

26

that content via different media and platforms after the programs are first aired on

27

primetime television.

28

services that permit cable and satellite television subscribers to select from a library

For example, a separate and growing market exists for
-7-

2104618.1

•

•

1

of previously-aired television programs for immediate viewing on television. These

2

services are commonly known as video-on-demand or "VOD." VOD programs are

3

distributed after a short window following a program's original air date and time.

4

However, the ability to fast-forward through commercials on VOD is often

5

restricted.

6

25.

FOX also distributes the FOX Programs (including premium versions

7

with reduced commercials) through various websites owned in whole or in part by

8

FOX for home viewing, remote viewing, or viewing on mobile devices.

9

26.

FOX also distributes ultra-premium versions of the FOX Programs

10

with no commercials via electronic rental and/or sell-through ("ESL") merchants

11

such as iTunes, Amazon, Netflix, and Vudu for home viewing, remote viewing, or

12

viewing on mobile devices.

13

27.

FOX recoups part of its

substantial investment

In

creative

14

programming by distributing its primetime programming, at a premium, in

15

commercial-free formats, such as through on-demand television access, on-demand

16

Internet access, and the sale of DVDs and Blu-Ray Discs.

17

28.

Therefore, separate markets and channels of distribution exist for

18

consumers who wish to watch the FOX Programs in a reduced-commercial format,

19

a commercial-free format, or a format that can be viewed on mobile devices or

20

computers outside the home. For example, consumers who pay for a Hulu Plus

21

subscription are able to view the FOX Programs on mobile devices with reduced

22

commercials. Consumers may also pay to stream or download the FOX Programs

23

from iTunes or Netflix and watch their favorite programs without commercials on a

24

mobile device.

25

D.

26

DISH's Unlawful Conduct

29.

On information and belief, one of DISH's pnmary strategies for

27

differentiating itself from its competitors has been to focus on providing on-demand

28

entertainment so as to position itself as an alternative to Netflix. For example, in
-82104618.1

•

•

1

2011, DISH bought the assets of Blockbuster and launched Blockbuster@Home

2

(originally

3

"Blockbuster@Home -- The Netflix Alternative" DISH boasts that its service

4

provides subscribers with the ability to "stream thousands of movies to your TV,

5

iPad®, or computer" and "not only gives customers an alternative to Netflix, it

6

gives you one better."l DISH also offers subscribers "thousands of On Demand TV

7

shows and movies" on their computers through the licensed service DISH Online. 2

8

30.

called Blockbuster

Movie

Pass).

On

a

web

page

titled

In March 2012, DISH introduced the Hopper Whole-Home HD DVR

9

System (the "Hopper"). The Hopper is a set-top box leased by DISH to subscribers

10

who purchase DISH's top-tier television packages. The Hopper is essentially two

11

recording systems in one box. It contains a two-terabyte hard drive which is

12

partitioned into two sections, one controlled by DISH and one controlled by the

13

subscriber. The bootleg Primetime Anytime copies are made by DISH and are

14

stored on the DISH-controlled section of the hard drive. There is also a traditional,

15

user-operated DVR that resides on the subscriber-controlled section of the hard

16

drive, which the subscriber can use to select specific programs to record for later

17

home viewing.

18

31.

When the Hopper was introduced, DISH boasted in a press release that

19

Primetime Anytime "creates an on-demand library of approximately 100 hours of

20

primetime TV shows.,,3 DISH's website currently touts Primetime Anytime as

21

providing "On Demand access for 8 days to all HD programming that airs during

22
23
24
25
26
27
28

1 http://dishtv.comlblog/2012/05/07lblockbusterhome-the-netflix-alternative/.

http://www.dish.comlentertainmentimovies/#movies-dish-online.
3 http://press.dishnetwork.comlpress-releaseslhopper-whole-home-hd-dvr-systemnow-avail/
2

- 92104618.1

•

•

1

primetime hours on ABC, CBS, FOX, and NBC without needing to schedule

2

individual recordings.,,4

3

32.

DISH has promoted Primetime Anytime as a substitute for legitimate

4

on-demand services. During an interview while demonstrating Primetime Anytime,

5

DISH's Vice President Vivek Khemka stated, "I don't think you'd need Hulu or

6

Hulu Plus after this."

7

33.

DISH

creates

Primetime

Anytime's

"on

demand

library

of

8

approximately 100 hours primetime of TV shows" by recording, without

9

authorization, all programming aired by the four national broadcast networks during

10

primetime hours every night. On information and belief, the programming recorded

11

by DISH through the Primetime Anytime service consists exclusively of

12

copyrighted network programming, including the FOX Programs.

13

34.

FOX has not consented to the recording of its copyrighted programs by

14

DISH, or to the distribution by DISH to its subscribers of copies of all of FOX's

15

primetime programming for subsequent on-demand, commercial-free viewing.

16

35.

DISH makes the programming it records through Primetime Anytime

17

available for on.:demand viewing without commercials through use of its Auto Hop

18

Feature. Auto Hop, which is exclusive to Primetime Anytime, delivers to viewers

19

the Primetime Anytime recordings without commercials and without the need to

20

fast forward.

21

36.

The express, advertised purpose of Auto Hop is to permit subscribers

22

using Primetime Anytime to watch their on-demand copies of network primetime

23

programming commercial free. Auto Hop's launch was accompanied by a media

24

blitz in which DISH announced that it was now offering "Commercial-free TV."

25

Advertisements for DISH now boast that "DISH created commercial-free TV."

26
27
28

4 http://www.dish.comltechnology/receivers-dvrs/; see also
http://www.dish.comltechnology/hopper/ (touting the Hopper as providing "instant
on-demand access to your favorite primetime shows for 8 days.").
- 102104618.1

1

37.

•

•

DISH's website announces: "WATCH COMMERCIAL FREE TV ...

2

Now you can automatically skip commercials in primetime TV - on ABC, CBS,

3

FOX and NBC in HD.,,5

4

subscribers:

And DISH's Auto Hop Quick Start Guide instructs

5

Here's where Auto Hop comes into play. When you are

6

ready to watch your recorded PrimeTime Anytime

7

content, simply open the PrimeTime Anytime or DVR

8

menu screen.

9

kangaroo) icon beside each show that you may watch

You will see a small Hopper (red

10

commercial free.

11

When you select a show with the Hopper icon, a pop-up

12

message will appear on screen that asks whether you

13

want to enable Auto Hop. Choose 'yes,' and simply sit

14

back and watch the show commercial free. Choose 'no,'

15

and watch with the commercials intact.

16

38.

The Quick Start Guide goes on to explain that Auto Hop is "not like

17

fast-forwarding": "Once you have chosen Auto Hop for your show, you can put the

18

remote control down; you've enabled Auto Hop's patented technology to skip the

19

commercials during your show automatically."

20

39.

Auto Hop operates only on the primetime network programmmg

21

recorded through Primetime Anytime, and not on non-primetime programming,

22

cable programming, or programming recorded with the DVR that resides on the

23

user-controlled section of the Hopper's hard drive.

24
25

40.

Based on publicly available information provided by DISH, the

Primetime Anytime service operates as follows. Once a subscriber activates the

26
27
28

http://www.dish.com/redirects/promotion/offer2I?WT.srch= 1&KBID
=62283& WT.mc_id=GSBNAUTHOP_3194&gclid=CITpuP3GkrACFQ5rhwodOk
Msp

5

- 11 2104618.1

•

•

1

servIce, DISH records all of the programmmg aired each night by the four

2

broadcast networks during primetime hours (8 to 11 pm Monday through. Saturday,

3

and' 7 to 11 pm Sunday). Each night of recorded programming is saved for eight

4

days on a section of the Hopper's partitioned 2-terabyte hard drive that is controlled

5

by DISH. During the eight days that the recorded programming is available, the

6

user can select individual programs to watch or save to the user-controlled section

7

of the hard drive for future viewing. The programs the user chooses not to save to

8

the user-controlled section of the hard drive are automatically deleted by the

9

Hopper after eight days.

10

41.

The copying done by DISH through Primetime Anytime is

11

fundamentally different from the copying done by consumers who record programs

12

using traditional DVRs.

13

consumer, not the cable or satellite provider. A DVR user can record any program

14

on any channel he or she receives, and can start and stop the recording

15

instantaneously, at any time during the recording process, using a remote control.

16

None of this is true of Primetime Anytime. For example, the DISH subscriber

17

cannot command Primetime Anytime to record specific channels; Primetime

18

Anytime will always record all four broadcast networks and never any other

19

channels. The DISH subscriber cannot command the Primetime Anytime system to

20

record specific programs; Primetime Anytime always records the entire primetime

21

schedule, including programs the subscriber has no interest in and will never watch.

22

The DISH subscriber cannot command Primetime Anytime to instantly start or stop

23

recording; Primetime Anytime cannot be activated or deactivated during primetime.

24

42.

A key difference is that DVRs are controlled by the

By offering Primetime Anytime, DISH is not merely providing its
DISH actively controls and is

25

subscribers with a passive file storage device.

26

involved in the operation of all aspects of the Primetime Anytime system. Unlike a

27

traditional DVR, the Primetime Anytime service was specifically and deliberately

28

architected by DISH so that DISH can record, and/or encourage and facilitate the
- 122104618.1

•

•

1

unauthorized recording of, hundreds of hours of copyrighted television programs

2

and distribute those copies in a revised format so they can be viewed commercial-

3

free by the subscriber. On information and belief, Primetime Anytime is able to

4

record all four networks simultaneously on a single tuner because DISH transmits

5

the four networks' signals from a single satellite transponder. While Primetime

6

Anytime is activated, DISH records all network primetime programming on the

7

DISH-controlled portion of the Hopper hard drive.

8

DISH then inserts data markers into the recorded Primetime Anytime copy of each

9

program and stores that copy on the DISH-controlled portion of the Hopper hard

10

On information and belief,

drive for further transmission and distribution.

11

43.

The Hopper also includes a standard DVR, which resides on the user-

12

controlled portion of the hard drive, and which is separate and apart from

13

Primetime Anytime. The subscriber can use this DVR to select, record, save, and

14

play back programming. The use of this DVR to record and play back individual

15

programs selected by the user for later viewing in the home is not at issue in this

16

lawsuit.

17

44.

DISH also distributes copyrighted programming over the Internet to

18

subscribers' computers and mobile devices through its Sling Adapter. The Sling

19

Adapter is a device which, when connected to a DISH set-top box such as the

20

Hopper, streams live television programming and DVR recordings over the

21

Internet, where they can be remotely viewed on DISH's website from any computer

22

with Internet access or from any mobile device running DISH's Remote Access

23

application. On information and belief, DISH subscribers using the Sling Adapter

24

can view Primetime Anytime programming without commercials using the Auto

25

Hop feature.

26

45.

By making its bootleg, commercial-free, on-demand programmmg

27

available over the Internet and on mobile devices via Sling, DISH is usurping rights

28

it never negotiated for and does not possess, in order to compete unfairly with
- 13 2104618.1

•

•

1

authorized providers such as iTunes and Amazon, who pay for the right to offer

2

commercial-free VOD versions of FOX programming to their customers.

3

E.

4

DISH's Breaches of the Retransmission Consent Agreement And Letter
Agreement

5

46.

DISH does not have the right to copy and distribute FOX

6

programming in the ways described above.

7

Agreement, DISH does not have the right to use FOX's signal to create a VOD

8

service where Fox programming can be viewed commercial free.
47.

9

Under the Retransmission Consent

In 2010, the Retransmission Consent Agreement between FOX and

10

DISH was amended by a Letter Agreement. The Letter Agreement states that FOX

11

will make available to DISH on a VOD basis all primetime series for which FOX

12

provides VOD content to any multichannel video programming distributor.

13

Although FOX has offered VOD content to DISH, DISH has never availed itself of

14

its VOD rights under the Retransmission Consent Agreement.
48.

15

In the event that FOX provides VOD content to DISH pursuant to the

16

Letter Agreement, the Letter Agreement expressly protects FOX against the

17

distribution of VOD content without commercials.

18

FOX VOD content to its subscribers, the Letter Agreement requires DISH to

19

disable fast-forward functionality during all advertisements, and expressly provides

20

that such fast-forward disabling is a necessary condition to the distribution of the

21

FOX content via VOD.
49.

22

Specifically, if DISH offers

The Letter Agreement expressly prohibits DISH from frustrating or

23

circumventing, or attempting to frustrate or circumvent, the protections granted to

24

FOX under the Letter Agreement, which include the protections against

25

commercial-free VOD described above.
50.

26

DISH does not have the right to distribute FOX programming over the

27

Internet via Sling either. The Letter Agreement expressly states that DISH shall not

28

retransmit or otherwise distribute FOX's signal by means of the Internet, broadband
- 14 2104618.1

•

•

1

or any other online technology or wireless or cellular technology (such as cell

2

phones, tablets, or PDAs).

3

FIRST CLAIM FOR RELIEF

4

(Direct Copyright Infringement)

5
6

51.

FOX hereby realleges and incorporates by reference each and every

allegation of Paragraphs 1-50, above.

7

52.

Without the pennission or consent of FOX, DISH has reproduced and

8

distributed, and unless enjoined will continue to reproduce and distribute, FOX's

9

copyrighted works, including but not limited to the FOX Programs listed in

10

Exhibit A.

11

53.

Specifically, DISH has made, and unless enjoined will continue to

12

make, copies of such works by recording them through the operation of its

13

Primetime Anytime service.

14

54.

On infonnation and belief, DISH has made, and unless enjoined will

15

continue to make, copies of such works by reproducing them as part of the process

16

by which it renders them commercial-free through Auto Hop.

17

55.

DISH causes and carries out the unauthorized copymg of FOX's

18

works by reproducing those works onto the DISH-controlled portion of its

19

subscribers' Hopper set-top boxes as part of the Primetime Anytime service, and by

20

reproducing those works in connection ·with the process by which it renders them

21

commercial-free through Auto Hop.

22
23

56.

DISH has made, and unless enjoined will continue to make, copies of

such works though the operation of the Sling Adapter.

24

57.

Without pennission or consent of FOX, DISH has distributed and

25

unless enjoined will continue to distribute FOX's copyrighted works by providing

26

DISH subscribers with an unauthorized video-on-demand service for primetime

27

television including the FOX Programs, and by distributing copies of the FOX

28
- 15 2104618.1

•

•

1

Programs through the Primetime Anytime system that it designed and operates, in a

2

format that allows for commercial-free viewing.

3

58.

DISH has also exceeded the scope of its license agreements with FOX

4

by streaming and/or distributing copies of the FOX Programs over the Internet via

5

the Sling Adapter in direct contravention of FOX's contractual rights. DISH is

6

directly liable for these acts of infringement under the Copyright Act.

7

59.

DISH's reproduction and distribution of the FOX Programs as

8

described above constitutes infringement of FOX's exclusive rights under copyright

9

law in violation of 17 U.S.C. §§ 106(1), 106(3) and 501.

10

60.

DISH has also exceeded the scope of its license from FOX to transmit

11

the FOX Programs to the public in violation of FOX's exclusive rights under

12

17 U.S.C. §§ 106(4) and 501.

13

61.

14

Copyright Act.

15

62.

16

63.

64.

As a result of DISH's willful copyright infringement, FOX has been

and will continue to be irreparably harmed.

21
22

DISH's acts of infringement are willful, intentional, and purposeful, in

disregard of and with indifference to FOX's rights.

19
20

The infringement of FOX's rights in each of its copyrighted works

constitutes a separate and distinct act of infringement.

17
18

DISH is directly liable for these acts of infringement under the

65.

Unless restrained by the Court, DISH will continue to engage in such

willful copyright infringement.

23
24
25
26
27

28
- 16 2104618.1

•

1
2

(Secondary Copyright Infringement)

3
4

•

SECOND CLAIM FOR RELIEF

66.

FOX hereby realleges and incorporates by reference each and every

allegation of Paragraphs 1-65, above.

5

67.

As an alternative theory to its direct infringement claim, in the event

6

that DISH contends that the unlawful copying described herein is done by its

7

subscribers, FOX further alleges the following:

8

68.

The unauthorized copying of the FOX Programs is a violation of

9

FOX's exclusive rights under 17 U.S.C. § 106. Among other things, and without

10

limitation, this conduct amounts to the unauthorized reproduction of FOX's

11

copyrighted works.

12

69.

The unauthorized copying of the FOX Programs that DISH enables,

13

encourages, and facilitates as described above is without FOX's consent and not

14

otherwise permissible under the Copyright Act.

15

70.

DISH is liable under the Copyright Act for the infringing acts of DISH

16

subscribers as a contributory copyright infringer. DISH, through its own conduct,

17

has induced, caused, encouraged, assisted and/or materially contributed to this

18

infringing activity.

19

infringement of FOX's copyrights by DISH subscribers. Indeed, DISH actively

20

promotes the infringements as a reason to purchase its products and services,

21

provides tools that are indispensable to these infringements, in particular the

22

Hopper set-top box and Primetime Anytime service, and continuously facilitates the

23

infringements including by, among other things, encouraging subscribers to use

24

PrimeTime Anytime to copy FOX's copyrighted works and storing the

25

unauthorized copies on the DISH-controlled section of the Hopper's hard drive.

26

71.

DISH has actual and constructive knowledge of the direct

DISH is vicariously liable under the Copyright Act for the infringing

27

acts of DISH subscribers.

DISH has the right and ability to supervise and/or

28

control the infringing conduct of users of Primetime Anytime. First, DISH has
- 17 2104618.1

•

•

1

made a deliberate decision to offer its users features that are specifically designed to

2

enable widespread infringements, when it could have prevented or greatly limited

3

that conduct by declining to offer or to facilitate or support use of those unlawful

4

features. Second, DISH specifically designed Primetime Anytime (and provided

5

ongoing assistance to its customers) to encourage the reproduction of copyrighted

6

works.

7

customers' infringing conduct.

8
9

72.

Third, DISH's regular involvement is an indispensable link in its

DISH has a direct financial interest in the infringement of FOX's

copyrights by DISH subscribers. DISH's economic success is directly tied to the

10

popularity of the infringing conduct that they seek to encourage.

11

infringing capabilities of Primetime Anytime -

12

unauthorized copies of primetime network programming for commercial-free

13

viewing - are the Hopper's principal selling points.

14

73.

Indeed, the

specifically that it creates

DISH is liable under the Copyright Act for inducing the infringing acts

15

of DISH subscribers. DISH took active steps to encourage its subscribers to use

16

Primetime Anytime to infringe FOX's copyrights. DISH distributed the Hopper

17

with the Primetime Anytime service with the intent that its subscribers use

18

Primetime Anytime to infringe FOX's copyrights, as evidenced by its numerous

19

advertisements and user manuals which encourage subscribers to activate

20

Primetime Anytime in order to continuously record all primetime network

21

programming and watch it on demand without commercials.

22
23

74.

of and with indifference to FOX's rights.

24
25

75.

As a result of DISH's conduct, FOX has been and will continue to be

irreparably harmed.

26
27

DISH's acts have been willful, intentional and purposeful, in disregard

76.

Unless restrained by the Court, DISH will continue to engage in such

willful copyright infringement.

28
- 18 2104618.1

•

1
2

(Breach of Contract )

3
4

•

THIRD CLAIM FOR RELIEF

77.

FOX hereby realleges and incorporates by reference each and every

allegation of Paragraphs 1-76, above.

5

78.

FOX has fully performed all obligations required of it under the

6

Retransmission Consent Agreement, as amended by the Letter Agreement, except

7

to the extent prevented or excused by DISH's breaches or other wrongful conduct.

8

79.

DISH has materially breached the Retransmission Consent Agreement,

9

as amended by the Letter Agreement, by providing to its subscribers commercial-

10

free FOX Programs on demand, via the Primetime Anytime system and Auto Hop

11

feature. Because the Letter Agreement provides protections against the distribution

12

of commercial-free FOX Programs on demand, DISH has breached its express

13

contractual obligation not to take any actions intended to frustrate or circumvent, or

14

attempt to frustrate or circumvent, the protections granted to FOX under the Letter

15

Agreement.
80.

16

DISH has also materially breached the Retransmission Consent

17

Agreement, as amended by the Letter Agreement, by distributing the signals of

18

FOX stations over the Internet via its Sling Adapter product and service. DISH's

19

actions relating to the Sling Adapter product and service violate the Letter

20

Agreement, which prohibits distribution via the Internet.

21
22

81.

FOX has been damaged as a direct and proximate result of the

breaches set forth above.

23
24
25

26
27

28
- 19 2104618.1

•

1

(Breach of the Implied Covenant of Good Faith)

2

3
4

•

FOURTH CLAIM FOR RELIEF

82.

FOX hereby realleges and incorporates by reference each and every

allegation of Paragraphs 1-81, above.

5

83.

By providing to its subscribers commercial-free FOX Programs on

6

demand, via the Primetime Anytime service and Auto Hop feature, and by

7

distributing the signals of FOX stations over the Internet via its Sling Adapter

8

product and service, DISH has deprived FOX of the right to receive benefits under

9

the Retransmission Consent Agreement, as amended by the Letter Agreement.

10
11

84.

faith and fair dealing implicit in every contractual relationship.

12
13

DISH's conduct constitutes a breach of the implied covenant of good

85.

FOX has been damaged as a direct and proximate result of DISH's

breach of the implied covenant of good faith and fair dealing.

14
15

PRAYER FOR RELIEF

16

WHEREFORE, FOX prays for judgment as follows:

17

1.

For an order preliminarily and permanently enjoining and restraining

18

DISH and its officers, agents, servants, and employees and all those in active

19

concert or participation with them, from directly committing, aiding, encouraging,

20

enabling, inducing, causing, materially contributing to, or otherwise facilitating the

21

unauthorized reproduction or distribution of the FOX Programs without consent;

22

2.

For a Declaratory Judgment under 28 U.S.C. §§ 2201(a) and 2202, that

23

DISH has infringed FOX's copyrights in violation of 17 U.S.C. § 101, et seq.

24

through the conduct alleged herein;

25

3.

F or an award of compensatory and statutory damages, costs, and

26

reasonable attorneys' fees in accordance with 17 U.S.C. §§ 504 and 505 and other

27

applicable law;

28
- 202104618.1

1

2

4.

•

•

For damages for breach of contract and breach of the implied covenant

of good faith and fair dealing in an amount to be determined at trial; and
5.

3

For such other relief as the Court may deem just and proper.

4

5

DATED: May 24, 2012

JENNER & BLOCK LLP

6

BY:~P-!Iv
chard L. Stone

7

8
9

Attorneys for Plaintiffs
F ox Broadcasting Company,
Twentieth Century Fox Film Corp.,
and Fox Television Holdings, Inc.

10
11
12
13
14
15

DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial.

16

17
18

DATED: May 24, 2012

JENNER & BLOCK LLP

19
20
By: # -____
______________4
Richard L. Stone
~~~

21
22

Attorneys for Plaintiffs
Fox Broadcasting Company,
Twentieth Century Fox Film Corp.,
and Fox Television Holdings, Inc.

23
24
25

26
27

28
- 21 2104618.1

EXHI.BIT A

•

•

Illustrative Copyright Registrations

No.

Program Title

Broadcast
Date

Copyright
Owner

Screenplay
Registration I

Broadcast
Station

l.

American Dad;
"Toy Whorey"

05/13/2012

PAU-3-536-825

FBC

2.

Bob's Burgers;
"Bad Tina"

05/13/2012

PAU-3-588-234

FBC

3.

Bob's Burgers;
"Beefsquatch"

05/20/2012

PAU-3-588-236

FBC

4.

Bones;
"The Past in the Present"

05/14/2012

PAU-3-611-816

FBC

5.

The Cleveland Show;
"Mama Drama"

05/13/2012

PAU-3-547-800

FBC

6.

The Cleveland Show;
"All You Can Eat"

05/20/2012

PAU-3-571-939

FBC

7.

Family Guy;
"Tea Peter"

05/13/2012

PAU-3-544-437

FBC

8.

Family Guy; "Family
Guy Viewer Mail #2"

05/20/2012

PAU-3-560-983

FBC

9.

Family Guy;
"Internal Affairs"

05/20/2012

PAU-3-560-985

FBC

10.

Glee;
"Props"

05/15/2012

PAU-3-611-825

FBC

II.

The Simpsons;
"How I Wet Your
Mother"
The Simpsons;
"Ned 'N Edna's Blend
Agenda"

05/13/2012

Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corp_oration
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corp_oration
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film

PAU-3-571-923

FBC

PAU-3-586-023

FBC

12.

I

Co~oration

05/13/2012

Twentieth
Century Fox Film
Corporation

Audiovisual applications pending.

2103684.3

Exhibit A

22

•

•
No.

Program Title

Broadcast
Date

Copyright
Owner

Screenplay
Registra tion I

Broadcast
Station

13.

The Simpsons;
"At Long Last Leave"

05/20/2012

PAU-3-571-922

FBC

14.

The Simpsons;
"Lisa Goes Gaga"

05/20/2012

PAU-3-576-622

FBC

15.

Touch;
"Music of the Spheres"

05/1 0/2012

PAU-3-606-242

FBC

16.

Touch:
"Tesselations"

05/17/2012

Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation
Twentieth
Century Fox Film
Corporation

PAU-3-612-007

FBC

2
2103684.3

Exhibit A

23