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 5

UNITED STATEOSTRICT COURT, CENTRAL DISTRICT of CALIFORNIA

...J

CIVIL COVER SHEET
DEFENDANTS

I (a) PLAINTIFFS (Check box if you are representing yourself D)

NBC STUDIOS, LLC; UNIVERSAL NETWORK
TELEVISION, LLC; OPEN 4 BUSINESS PRODUCTIONS
LLC and NBCUNIVERSAL MEDIA, LLC

DISH NETWORK CORPORATION; DISH NETWORK L.L.c.

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

Attorneys (If Known)

ROBERT H. ROTSTEIN (SBN 72452) [e-mail]
MITCHELL, SILBERBERG & KNUPP LLP
11377 West Olympic Blvd.
Los Angeles, CA 90064-1683
[phone]
II. BASIS OF JURISDICTION (Place an X in one box only.)

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

[8J 3 Federal Question (U.S.

D I U.S. Government Plaintiff

Government Not a Party
D 2 U.S. Government Defendant

PTF DEF
D I 0 I

Citizen of This State

D 4 Diversity (Indicate Citizenship Citizen of Another Stae
of Parties in Item III)

D 2 D 2

Citizen or Subject of a Foreign Country D 3 D 3

Incorporated or Principal Place
of Business in this State

Incorporated and Principal Place D 5 D 5
of Business in Another State
Foreign Nation

IV. ORIGIN (Place an X in one box only.)

[8J

I Original
0
Proceeding

2 Removed from D 3 Remanded from 0
State Court
Appellate Court

4 Reinstated or 0
Reopened

V. REQUESTED IN COMPLAINT: JURY DEMAND: DYes
CLASS ACTION under F.R.C.P. 23: 0

Yes

[8J

[8J

PTF DEF
04 04

5 Transferred from another district (specify): D 6 MultiDistrict
Litigation

o 7 Appeal to District
Judge from
Magistrate Judge

No (Check 'Yes' only if demanded in complaint.)

No

D MONEY DEMANDED IN COMPLAINT: $

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 Do not cite jurisdictional statutes unless diversity.)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. § 101, et seq. Copyright Infringement; Inducement of Copyright Infringement; Contributory Copyright Infringement; Vicarious
Copyright Infringement
VII. NATURE OF SlJIT (Place an X in one box only.)
OTHER STATUTES

TORTS

CONTRACT

PERSONAL INJURY
o 400 State Reapportionment o 110 Insurance
o 310 Airplane
04\0 Antitrust
D 120 Marine
o 315 Airplane Product
o 430 Banks and Banking D 130 Miller Act
Liability
o 450 CommercelICC
D 140 Negotiable Instrument
D 320 Assault, Libel &
Rates/etc.
D 150 Recovery of
Slander
o 460 Deportation
Overpayment &
D 330 Fed. Employers'

0470 Racketeer Influenced
and Corrupt
Organizations
D
D
D 480 Consumer Credit
490 Cable/Sat TV
810 Selective Service
850 Securities/Commodities/ D
Exchange
0875 Customer Challenge 12
D
USC 3410
890 Other Statutory Actions D
D
0891 Agricultural Act
892 Economic Stabilization
D
Act
893 Environmental Matters
894 Energy Allocation Act D
D
0895 Freedom of Info. Act
0900 Appeal of Fee Determi- D
nation Under Equal
D
Access to Justice
D
0950 Conslitutionality of State D
Statutes

o
o
o
o
o
o
o

Enforcement of
Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loan (Excl.
Veterans)
153 Recovery of
Overpayment of
Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product
Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

D

o
o
D
D
D
D
D

D
D
D

FOR OFFICE USE ONLY:

D

Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal InjuryMed Malpractice
365 Personal InjuryProduct Liability
368 Asbestos Personal
Injury Product
Liability
IMMIGRATION
462 Naturalization
Application
463 Habeas CorpusAlien Detainee
465 Other Immigration
Actions

Case Number:

AFTER COMPLETING THE FRONT SIDE OF
CV -71 (05/08)

D
D
D

.,.

FO~M

o
o

TORTS
PERSONAL
PROPERTY
D
370 Other Fraud
371 Truth in Lending
380 Other Personal D
Property Damage D
385 Property Damage D
Product Liabil ity
BANKRUPTCY
D
22 Appeal 28 USC
D
158
423 Withdrawal 28
USC 157
D
CIVIL RIGHTS
D

0441 Voting

o 442 Employment

D

D 443 Housing/AccDmmodations
0444 Welfare
D 445 American with
Disabilities Employment
446 American with
Disabilities Other
D 440 Other Civil
Rights

D
D
D
D

o

D

PRISONER
LABOR
PETITIONS
0710 Fair Labor Standards
510 Motions to Vacate
Act
Sentence Habeas D 720 Labor/Mgmt.
Corpus
Relations
530 General
D 730 Labor/Mgmt.
535 Death Penalty
Reporting &
Disclosure Act
540 Mandamus/
Other
D 740 Railway Labor Act
550 Civil Rights
D 790 Other Labor
Litigation
555 Prison Condition
D 791 Empl. Ret. Inc.
FORFEITURE /
Security Act
PENALTY
PROPERTY RIGHTS
610 Agriculture
[8J 820 Copyrights
620 Other Food &
D 830 Patent
Drug
D 840 Trademark
625 Drug Related
SOCIAL SECURITY
Seizure of
Property 21 USC D 61 HIA(l395ft)
881
D 862 Black Lung (923)
630 Liquor Laws
D 863 DIWCIDIWW
640 R.R.& Truck
405(g))
650 Airline Regs
864 ssm Title XVI
660 Occupational
865 RSI (405(g))
Safety /Health
FEDERAL TAX SUITS
690 Other
870 Taxes (U.S. Plaimiff
or Defendant)
871 IRS-Third Party 26
USC 7609

o
o
o
o

~,..

C,,"'1t1, COMPLETE THE

CIVIL COVER SHEET

~FORMATION

REQUESTED BELOW.
American legalNel, Inc
www.FormsWorkflow.com

Page I of2

UNITED ST ATF[ 'ISTRICT COURT, CENTRAL DISTRICT '"V CALIFORNIA
'-'

CIVIL COVER SHEET

""'"

VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed~

IZ1 No

Yes

If yes, list case number(s):
VIIJ(b). RELATED CASES: Have any cases been previously filed inthis court that are related to the present case?
If yes, list case number(s):

IZ1 No

Yes

Civil cases are deemed related ir a previously filed case and tbe present case:
(Check all boxes that apply)

0

A, Arise from the same or closely related transactions, happenings, or events; or

o B. Call for determination of the same or substantially related or similar questions of law and fact; or

Dc For other reasons VIOuld entail substantial duplication oflabor if heard by different judges; or

o D. 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 ifnecessary.)

List the COllllty in this District: California County outside of this District; State if other than California; or Foreign Country. in which EACH named plaintiff resides.

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.

(c) List the COllllty in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.
:----,N..::o::,:t:.:.e=-:l:.:n:.. :l:::a.::n.=.d. :c.::.oD:.:.d:;;c:.:m:.:.D:.;;a:.:t::.:io::,:n:.. :ea=se:::s:!"..=u",se:.,t:.:h::e:..:I.::.oc:.:a:.:t:.::io:.::n:..:o::,:r:..:t::.be::.. .:::tr.=a:.:.ct:.,o::;;fc..:l:::a.::.nd::::.. ::iD::.. v:.. :o::.hr-:'e:.:d::.._ _ _ _~~~_ _ _ _~~~~~~~~_ _ _ _ _ _ _..........~~_
--,C:.:oc::u:::nt):L'...::inc:..t:::h::::isc..:D:..:i.::;st:..:ri.::;et::..:·~_ _ _ _~~~_ _ _ _ _~~~_ _ _ _+~C.::.al:.:.:if1:.::.o.:.:m:.::ia=--C:::.o:..:u::::.n:.:,ty,-o:..:u:.:lS:.:.id:..:e:...o:..:f-=th:.::i::::.s.:::D...::is:.::trict;

State, if other than California; or Foreign Country

Los Angeles
• Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obi
Note: In land condemnation cases, use the location of the t
ofland involved
'
X. SIGNATURE OF ATTORNEY (OR PRO PER)

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 United States in September 1974, is required pursuant to Local Rule 3 -I is not filed
but is used by the Clerk of the 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 orSuit Code

Abbreviation

Substantive Statement or Ca use of Action

861

HIA

All claims for health insurance benefits (Medicare) under Title IS, 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»

S62

BL

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

863

DIWC

All claims filed by in:ured workers for disability insurance benefits under Title 2 of !he Social Security Act. as
amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g»

863

DIWW

All claims filed for widows orwidowers insurance benefits based on disability under Title 2 of the Social Security
Act, as amended. (42 USc. 405(g»

864

ssm

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,
U.S.c. (g))
SHEET

a~

amended, (42
Page 2 of2

American LegalNet, Inc.
www.FonnsWorkllow.com

.'

f.~·

,.

'"

"

.

1 RQBERT H. RQTSTEIN (SBN 72452)

rxr(a),msk.com

I

2 PATRICIA H. BENSQN (SBN 60565)

phb(a),msk.com
;JEAN PIERRE NQGUES (SBN 84445)
Jp_n(a),m sk. com
4 MIICHELL SILBERBERG & KNUPP LLP
11377 West Qlympic Boulevard
5 Los Angeles, California 90064-1683
Telephone: [phone]
6 FaCSImile: [phone]
3

7

(0:
~~

1.\

.., C'l

Attorneys for Plaintiffs"
.
NBC Studios LLC, Umversal Network Television
LL<; Open 4 Business Productions LLC, and
NBc Universal Media, LLC

10
11

UNITED STATES DISTRICT CQURT

12

LLC~

UNIVERSAL
14 NBC STUDIQS,
NETWQRK TELEVI~IQN, LLC;
15 QPEN 4 BUSINESS PRQDUCTIQNS
LLC; and NBCUNIVERSAL MEDIA,
16 LLC,

I

COMPLAINT FOR:
(1) COPYRIGHT INFRINGEMENT
(2) INDUCEMENT OF COPYRIGHT
INFRINGEMENT

Plaintiffs,

17
18

0.1 ~IhQ.;~ l
. , :."A..,
CV '-~U~:;.JO \f-~~L
CASE NO,'

CENTRAL D~STRICT

l3

v.

(3) CONTRIBUTORY COPYRIGHT
INFRINGEMENT

19 DISH NETWQRK CQRPQRATIQN;
DISH NETWQRK L.L.C.,
20
Defendants.
21

(4) VICARIOUS COPYRIGHT

INFRINGEMENT

22
23

Plaintiffs NBC Studios LLC, Universal Network Television LLC, Qpen 4

24 Business Productions LLC and NBCUniversal Media, LLC, by their counsel,
25 allege against Defendants DISH Network Corporation and DISH Network LLC
Mitchell
Silberberg &

26 (collectively DISH or Defendants):

Knupp LLP

27
28
4653565.6

1
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

"

NATURE OF ACTION

1
2

1.

DISH has created and is aggressively marketing as part of its

3

subscription satellite TV packages an unauthorized service that automatically and

4

completely skips the advertising that is an essential element of prime-time

5 broadcasting. Offered with its "Hopper" DVR, Dish's "PrimeTime Anytime" and
6 "Auto Hop" services copy the entire prime-time schedules of all of the major
7

national broadcast networks on a wholesale basis and enable their customers to

8

watch all of that programming on an entirely commercial-free basis. Yet, it is the

9 advertising that generates the revenue to support the enormously expensive

10 investment - in the billions of dollars per year - that creates the programs that
11

viewers want to watch. Indeed without the embedded advertising there would be

12 no program stream at all. The U.S. broadcast networks cannot provide the news,
13

sports and entertainment programming they have historically created and offered if

14 the revenue-generating ads are systematically blotted out on an unauthorized basis
15 by distributors like DISH.
16

2.

In the face of this reality, DISH now markets its new service with the

17 following basic message: "Hate commercials? Dish creates commercial-free TV
18 so you can save an hour each night! Now you can automatically skip commercials
19 in primetime TV- on ABC, CBS, FOX and NBC in HD." Ex. B. Under the
20 copyright law, however, DISH is simply not free

for its own business and

21

competitive advantage - to take a broadcast network's primetime advertiser-

22

supported programming stream and deliver it with an automatic commercial-

23

skipping service that effectively strips out every single ad across-the-board. If

24 DISH seeks to deliver an on-demand service that provides playback of programs
25 without ads, then it must seek authorization to do so, with mutually-acceptable
Mitchell
Silberberg &

26 shared economic arrangements, rather than unilaterally appropriating that

Knupp LLP

27 economic advantage to itself.
28
4653565.6

2
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

1

3.

Plaintiffs bring this action for preliminary and permanent injunctive

2

relief against Defendants' unlawful scheme to profit from an unprecedented and

3

unauthorized new system for violating Plaintiffs' copyrights in prime-time,

4

network television programming. Defendants market this infringing system in

5

connection with their satellite broadcast services and digital video recorder

6

("DVR") called "the Hopper." As described more fully below, through the

7

infringing functions of the Hopper, all of Plaintiffs' prime-time, network

8

television programs (along with all of the prime-time shows aired on the other

9

national broadcast networks) are copied, on a continuous eight-day rolling basis,

10 after which the customer can play it back with all ofthe commercials automatically

11

skipped in their entirety, and create a permanent library of that programming using

12 the Hopper's massive storage capabilities.
13

4.

Plaintiffs are among the largest and most successful producers and

14 distributors of television programming in the United States and the world.
15 Plaintiffs are engaged in the business of developing, producing, and/or distributing
16 television programming for exhibition and dissemination, and of licensing that
17 programming to others. In addition to producing (and owning the copyrights in)
18 numerous television programs, PlaintiffNBCUniversal Media, LLC ("NBCU")
19 owns and operates the NBC Television Network ("NBC") and other television
20 program services that deliver that programming to the American public.
21

5.

The Copyright Act, 17 U.S.C. § 101, et seq., provides Plaintiffs with

22 the exclusive rights to reproduce, adapt, distribute, and publicly perform and
23

display their copyrighted television programming. Plaintiffs exercise these rights

24 in an ever-expanding variety of ways, including commercially supported broadcast
25 television, syndicated television, Internet-based streaming and download services,
Mitchell
Silberberg &

26 video-on-demand services, on-demand access via licensed cable and satellite

Knupp LLP

27 providers, and on DVDs and Blu-Ray Discs. Due to the innovation of Plaintiffs
28
4653565.6

3
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

.'
and others, consumers have access to network television programming through
2 more authorized avenues than ever before. Yet, through the unlawful functions of
3 the Hopper, Defendants divert revenues generated from Plaintiffs' copyrights and
4 are infringing, and threaten to infringe, Plaintiffs' rights to exploit their
5 copyrighted works in these legitimate markets. In doing so, Defendants deprive
6 Plaintiffs of a fair return on their investments in creating and distributing some of
7 the most valuable programming on television. Defendants' conduct is exactly
8 what the copyright laws are intended to prevent.
9

6.

The Hopper allows Defendants and their customers to infringe

10 Plaintiffs' copyrights through the following interrelated features:

• The Hopper provides a "PrimeTime Anytime" feature, which copies

11
12

all of the prime-time (i.e., Monday through Saturday, 8:00 p.m.- 11:00

13

p.m., and Sunday, 7 p.m. - 11 p.m.) TV programming aired on NBC

14

and on the ABC, CBS and Fox television networks, every evening, on

15

an 8-day rolling basis;
• The Hopper provides what Defendants call the "Auto Hop" feature,

16
17

which enables the customer to watch the copied Primetime Anytime

18

programming with all commercial advertising automatically skipped

19

- and as more fully detailed below, Defendants market and actively

20

encourage the use of Auto Hop for that purpose.
• The Hopper provides a memory capacity of two terabytes (i.e., 2,000

21
22
23

of recorded video, thus allowing the creation of large libraries of

24

prime time television. As Defendants themselves acknowledge, "no

25
Mitchell
Silberberg &
Knupp LLP

gigabytes), which, Defendants boast, is capable of storing 2,000 hours

other company offers" such capacity.

26

7.

Thus, the Hopper effectively provides Defendants' customers with a

27 premium commercial-free channel consisting, at any given point in time, of all of
28
4653565.6

4
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

1 the copyrighted programming that aired in prime time on all four national
2 broadcast networks in the past eight days, including without limitation series
3 currently airing on NBC, such as 30 Rock, Dateline NBC, Law & Order SVU,
4 Parks and Recreation-, Rock Center, Smash, The Office, and Whitney, along with
5 the ability to create huge commercial-free libraries of those works.
6

8.

Plaintiffs have invested billions of dollars in their copyrighted content.

7 The Hopper's unprecedented methods of copying will deprive Plaintiffs of the
8 means of payment for their works and erode the value of Plaintiffs' copyrighted
9

programming. "Prime time" is the bloc of the television programming schedule

10

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

11

highest prices to have their commercials shown during this time. Television

12 networks and local broadcast stations generally derive significant percentages of
13 their advertising revenues from selling the right to advertise before, during or
14 immediately after the prime-time television programming airs. It is self-evident
15 that Advertisers will not pay, or will pay less, to have their advertisements placed
16 within and around Plaintiffs' television programming if the advertisements will be
17 invisible to viewers. Further, Plaintiffs recoup part of their substantial investments
18 in creative programming by disseminating their prime-time programming, at a
19

premium, in commercial-free formats, such as through on-demand television

20 access, on-demand Internet access, and the sale of DVDs and Blu-Ray Discs.
21

9.

The Hopper directly undercuts these established and legitimate

22 markets for paid access to Plaintiffs' programming. Moreover, the Hopper
23

interferes with Plaintiffs' efforts to make their prime-time programming available

24 to consumers for free through advertising-supported services, such as Internet
25
Mitchell
Silberberg &

streaming websites. Views of such web sites will decline if Defendants'

26 subscribers have permanent access to commercial-free copies of all of Plaintiffs'

Knupp LLP

27 prime-time shows. As a result, Defendants' unlawful conduct impairs the value of
28
4653565.6

5
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

"

1 Plaintiffs' works and reduces the incentive for their creation and dissemination.

2 Indeed, Defendants' unlawful conduct attacks the fundamental economic
3 underpinnings of television programming creation and delivery, and therefore the
4 very means by which Plaintiffs' copyrighted works are paid for. In this way,
5 Defendants cause harm not only to Plaintiffs, but also to consumers.
6

THE PARTIES

7
8

10.

Plaintiff NBC Studios LLC is a New York limited liability company

9 with its principal place of business at 100 Universal City Plaza, Universal City,
lO

California. Plaintiff Universal Network Television LLC is a Delaware limited

11

liability company with its principal place of business at 100 Universal City Plaza,

12 Universal City, California. Plaintiff Open 4 Business Productions LLC is a
13

Delaware limited liability company with its principal place of business at 100

14 Universal City Plaza, Universal City, California. Plaintiffs NBC Studios LLC,
15

Universal Network Television LLC, and Open 4 Business Productions LLC are all

16 indirect, wholly-owned subsidiaries of Plaintiff NBC Universal Media, LLC, and
17 are all engaged in, among other things, the production and distribution of television
18 programs.
19

11.

PlaintiffNBCUniversal Media, LLC ("NBCU") is a Delaware limited

20 liability company with its principal place of business at 30 Rockefeller Plaza, New
21

York, New York. NBCU, through its NBC News division, through the NBC

22 Network it owns and operates, and through its other subsidiaries, is engaged in,
23
24
25

among other things, the production and distribution of television programs.
12.

Plaintiffs are informed and believe, and therefore allege, that

Defendant DISH Network Corporation is organized under the laws of the State of

Mitchell
Silberberg &

26 Nevada and has its principal place of business in Englewood, Colorado. Plaintiffs

Knupp LLP

27 are informed and believe, and therefore allege, that Defendant DISH Network LLC
28
4653565.6

6
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

"

1 is a wholly owned subsidiary of DISH Network Corporation, is organized under
2 the laws of the State of Colorado, and has its principal place of business in
3

Englewood, Colorado. Plaintiffs are informed and believe, and therefore allege,

4 that each Defendant was the agent, joint venture and/or employee of the other

5 Defendant, and in doing the things hereinafter alleged, each was acting within the
6 course and scope of said agency, employment and joint venture with the advance

7 knowledge, acquiescence, and subsequent ratification of the other Defendant.

S
9

13.

Plaintiffs are informed and believe, and therefore allege, that DISH

Network Corporation and DISH Network LLC operate the third largest pay

10

television transmission system in the United States, servicing approximately 14

11

million customers as of September 30,2011.

12

JURISDICTION AND VENUE

13
14

15
16

14.

This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331

and 1338, and under the Copyright Act, 17 U.S.C. § 101 et seq.
15.

This Court has personal jurisdiction over Defendants, and venue is

17

proper in this Judicial District pursuant to 28 U.S.C. § 1391(b). Defendants

18

conduct extensive commercial activities in this State, including in this Judicial

19

District. Further, a substantial part of the events or omissions giving rise to this

20

lawsuit, as well as substantial injury to Plaintiffs, have occurred or will occur in

21

this District as a result of Defendants' acts of copyright infringement and

22

impending acts of copyright infringement, and unfair competition, as alleged in

23

detail below. Venue is also proper in this Judicial District pursuant to 28 U.S.C. §

24

1400(a) in that Defendants may be found in this District in light of their extensive

25

commercial activities in this District.

Mitchell
Silberberg &

26

Knupp LLP

27

28
4653565.6

7
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

.'
1

FACTUAL BACKGROUND

2

Free Over-the-Air, Commercially Supported Broadcasting

3

16.

NBC is one of the four major over-the-air television networks that

4 transmit programming to the American public via hundreds of free, local,

5 terrestrial broadcast stations that carry the networks' content. The networks'
6

content is also increasingly transmitted to the public by subscription-based cable

7

and satellite companies, including Defendant DISH Network, which retransmit the

8 content carried on local broadcast stations. The networks, including Plaintiff

9

NBCU, both create and license copyrighted content -largely entertainment, news

10

and sports programming

on which the public has come to rely for information

11

and entertainment. The four major networks and their affiliated local stations

12 continue to account for a large percentage of all television viewing in the United
13 States.
14

17.

Maintaining a nationwide system of free, over-the-air local television

15 stations, which provide news, information, and entertainment programming to
16 virtually all Americans without any need to pay subscription fees, has been a
17 crucial public-policy goal in the United States since the advent of television. The
18 creation and acquisition of the copyrighted content that has come to define free,
19 over-the-air television is made possible through commercial advertisements that
20 are shown in each program. Whether viewers watch programming for free over21

the-air or through pay services (such as Defendants' service) that retransmit

22 broadcast signals, advertisements provide the primary means of payment for the
23 copyrighted programming that the public views. As alleged more fully below,
24 Defendants' infringing system blocks the delivery of advertising to viewers and
25 thereby deprives copyright owners of the means by which they are paid for their
Mitchell
Silberberg &
KnuppLLP

26 works. Defendants' conduct diminishes both the value of the works and the
27 incentive to create and distribute original content over the medium. By
28

4653565.6

8
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

1 undermining the engine by which content is produced, Defendants' system
2 threatens to diminish the quantity and the quality of the programming Americans
3

have come to expect and demand.

4

Plaintiffs' Dissemination of Prime-Time Television Content

5
6

18.

Plaintiffs' most valuable programming airs during "prime time,"

7 which falls between the hours of eight p.m. and eleven p.m. Monday through
8

Saturday, and seven p.m. to eleven p.m. on Sunday. Plaintiffs own the United

9 States copyrights in a substantial number of prime-time programs, including
10

successful series currently airing on NBC, such as those listed in Paragraph 7

11

above. Plaintiffs have registered or filed applications to register with the United

12

States Copyright Office their copyrights in each of the representative works

13

identified in the schedule attached hereto as Exhibit A and incorporated herein by

14

this reference.

15

19.

After a program airs on prime-time television, it is, in most cases,

16

made available for viewing via other markets, including through on-demand access

17

on cable or satellite services; internet-based services such as iTunes, Hulu, and

18 Netflix; mobile phone services; pay-per-view and location-based (e.g., airline and
19

hotel) services; and portable media (e.g., DVDs and BIu-Ray Discs). Further, the

20

programs are often available very shortly after airing in prime time, with additional

21

offerings following in stages.

22

20.

Plaintiffs have invested (and continue to invest) substantial sums of

23 money and effort each year to create and distribute television programs. The
24 public benefits from Plaintiffs' creative activities, as intended by the U.S.
25 Constitution and the Copyright Act. Plaintiffs recoup their substantial investments
Mitchell
Silberberg &
Knupp LLP

26 in creative programming in a number of ways, including the following:
27
28

4653565.6

9
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

"

• Advertiser Supported Broadcasts. National networks, including
2

NBC, and their local affiliates, derive substantial value by selling

3

advertising time during their broadcast programming. In addition,

4

broadcasting stations pay licensing fees to content providers like

5

Plaintiffs by generating value from commercial advertisements

6

inserted in or adjacent to each program. The viewership ratings

7

generated by Nielsen Media Research ("Nielsen") include viewing of

8

commercials during DVR and video-on-demand ("VOD") usage

9

during the first 3 days from the airing of a program

the so-called

10

"C3" rating - but Nielsen does not credit such viewership for any

11

portion of a commercial that is skipped or fast-forwarded. Thus, if a

12

commercial is automatically skipped in its entirety, it generates no

13

ratings and produces no revenue to support the creation and

14

dissemination of the programming in which it was aired.

15

• On-Demand Cable/Satellite Access. Plaintiffs also license their

16

copyrighted works for viewing by the public through (i) video-on-

17

demand services offered by cable and satellite providers, in which a

18

viewer can choose to watch a particular program at any time of her

19

choosing, generally on an advertising-supported model (in which the

20

advertisements often cannot be skipped or fast forwarded), , and/or (ii)

21

pay-per-view delivery, in which a viewer obtains one-time access to a

22

particular program, in return for payment of a fee for that access.

23

• On-Demand Online Access. Plaintiffs earn revenue by providing

24
25

their affiliates, and the websites and services of licensees. Some of

26

these models involve showing advertisements to consumers before,

27

Mitchell
Silberberg &

access to their copyrighted works via their websites, the websites of

after, or during viewing. Often, these advertisements cannot be

Knupp LLP

28
4653565.6

10
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

skipped or fast fOIwarded. Other models involve subscription
which are often free of

2

payments, payments for downloaded copies

3

advertisements - or rental payments (for time-limited windows to

4

view content).

5

• Content On Multichannel Services. Plaintiffs generate revenue by

6

licensing their copyrighted works for "syndicated" exhibition through

7

so-called "basic" non-broadcast television channels such as TBS,

8

TNT and Lifetime. Syndication involves delivery of programming

9

that already aired on broadcast stations at an earlier date. The

10

principal means by which non-broadcast channels derive revenues to

11

pay Plaintiffs for licensing of Plaintiffs' content are from the sale of

12

commercial time to advertisers and from fees paid by distributors such

13

as cable systems and satellite carriers (who in tum receive monthly

14

fees paid by subscribers). Such carriers also pay to retransmit

15

broadcast signals.

16

• Fixed Media. Plaintiffs generate substantial revenue from the sale or

17

rental for home viewing of authorized copies of their copyrighted

18

works in various formats, including DVD and Blu-Ray Discs.

19

Plaintiffs offer these formats at various price points, with different

20

offerings providing different levels of access to content, including via

21

in-home players for television viewing or via Internet or computer

22

access through connected licenses resident on the discs. These

23

formats typically do not include advertisements, other than occasional

24

"trailers" at the beginning of a disc.

25
Mitchell
Silberberg &

26

Knupp LLP

27
28
4653565,6

11
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
Defendants' Infringing Service

1

2

21.

On or about March 15,2012, Defendants made the Hopper DVR

3 available to its customers. The Hopper's "PrimeTime Anytime" option
4 automatically records all prime-time programming on NBC, CBS, ABC, and Fox,
5 every day, to the customers' DVR, which as alleged above, stores up to 2000 hours
6 of content. The prime-time programming, including that of Plaintiffs, is
7 automatically stored on the DVR for eight days and can be stored permanently.
8

22.

On or about May 10,2012, Defendants began offering a companion

9 service, called "Auto Hop," which automatically skips commercials during
10

11

vIewmg.
23.

The Hopper is thus specifically designed to function as a commercial-

12 free, on-demand video delivery and librarying service. Defendants boast that the
13

Hopper is unlike any other DVR offered by a television service provider. On their

14 website, an image from which is attached hereto as Exhibit B and incorporated by
15 reference, Defendants refer to the Hopper as an "on-demand" service that permits
16 the creation of commercial-free video "libraries" of copyrighted prime time
17 content commercial free. For example, Defendants market the Hopper as follows:
18

With the Hopper's exclusive feature, PrimeTime Anytime™, three

19

hours of HD primetime programming are available to you On Demand

20

for up to 8 days from initial air date. Plus you can save your favorite

21

primetime content forever. You can also automatically skip

22

commercials in primetime TV

23

24.

ABC, CBS, FOX and NBC in HD.

During an interview while demonstrating the Hopper, a representative

24 of Defendants stated: "I don't think you'd need Hulu or Hulu Plus after this." In
25 other words, Defendants tell their customers that the Hopper can be used as a
Mitchell
Silberberg &

26 substitute for Internet-based on-demand services. Plaintiffs make their

Knupp LLP

27
28
4653565.6

12
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
1 programming available on those services in advertising-supported, rental,
2

3
4

purchase, and subscription models.
25.

Defendants also tout (Ex. B.) The Hopper's ability to provide

commercial-free, on-demand program libraries to their customers:

5

Hate commercials? DISH created commercial-free TV so you can

6

save an hour each night! Now you can automatically skip

7

commercials in primetime TV- on ABC, CBS, FOX and NBC in HO.

8

Only on the Hopper. Only from DISH.

9

26.

10

Vivek Khemka, vice president of DISH Product Management,

described the infringing service as follows:

11

With the Auto Hop capability of the Hopper, watching your favorite

12

shows commercial-free is easier than ever before. It's a revolutionary

13

development that no other company offers and it's something that sets

14

Hopper above the competition .... With Hopper, you have access to

15

all primetime HO programs broadcast by the four major networks.

16

Now you can watch many of those shows commercial-free, with Auto

17

Hop.

18 DISH Press Release, DISH Introduces Commercial-Free TV With "Auto Hop,"
19

May 10,2012.

20
21

Irreparable Harm to Plaintiffs As a Result of Defendants' Infringement

22

27.

23

Defendants' brazen copyright infringement seriously threatens

Plaintiffs' ability to earn revenue from their copyrighted works through existing

24 and potential methods of dissemination. Unless enjoined, Defendants' illegal
25
Mitchell
Silberberg &
Knupp LLP

conduct will irreparably injure Plaintiffs in numerous ways that are incapable of

26 calculation or redress through monetary damages. Defendants' unlawful scheme
27 will also ultimately harm the public, because it will divert revenue from the
28

4653565.6

13
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

. .
,

'

1 creators and licensors of original programming to Defendants, thereby threatening
2 to decrease the output of copyrighted works and the investment therein. The
3 threatened harm to Plaintiffs includes the following:
4

• Plaintiffs are paid for advertisements that air during broadcasts based

5

on viewership. If Defendants' customers do not view commercials

6

during prime-time shows, Plaintiffs' most significant source of

7

revenue will be diminished.

8
9

• Plaintiffs earn license fees for the television content they produce. If
the advertising revenue stream from broadcasting that content is

10

impaired, then the license fees that Plaintiffs receive for produced

11

television content will be diminished.

12

• Plaintiffs license shows for syndicated runs on cable channels, which

13

take place after the broadcast runs of the shows conclude. Ifviewers

14

use Defendants' service to collect commercial-free libraries of prime-

15

time network shows for later viewing, the market for watching shows

16

in syndication will be reduced.

17

• Plaintiffs earn revenue from commercials shown during programs

18

made-available "on demand" for free to subscribers of cable and

19

satellite subscription services, both online and on television. Often

20

these commercials cannot be fast forwarded. Defendants' infringing

21

service will deter viewers from using such offerings.

22

• Consumers increasingly view programs they missed when they first

23
24

licensees, such as Hulu. These services are often advertising

25

supported .. Defendants' customers will have little incentive to seek

26

out online access to programming given that Defendants are providing

27

Mitchell
Silberberg &
Knupp LLP

aired on Internet websites operated by Plaintiffs and Plaintiffs'

it to them on demand and commercial free.

28
4653565.6

14
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
1

• Plaintiffs make commercial-free, penn anent copies of works available

2

to consumers, both through Internet-based downloading services, such

3

iTunes and Amazon, and through the sale of fixed media fonnats.

4

Defendants' provision of commercial-free, prime-time television

5

libraries to its customers will undercut the markets for Plaintiffs

6

legitimate offerings.

7
8

CLAIMS FOR RELIEF

9

COUNT I

10

(COPYRIGHT INFRINGEMENT IN VIOLATION OF THE COPYRIGHT

11

ACT, 17 U.S.C. §§ 101, ET SEQ.)

12

28.

Plaintiffs incorporate by reference each and every allegation set forth

13 in paragraphs 1 through 27, inclusive, as though fully set forth herein.
14

29.

Plaintiffs are the copyright owners of the works listed in Exhibit A, as

15 well as many other motion pictures and television programs telecast in the United
16 States, each of which contain a large number of creative elements wholly original
17 to Plaintiffs and which are copyrightable subject matter under the laws of the
18 United States.
19

30.

Plaintiffs have obtained (or have applied for) copyright registration

20 certificates for each work listed in Exhibit A. In doing so, Plaintiffs have complied
21

in all respects with 17 U.S.C. § 101, et seq. and all other laws governing federal

22 copyrights.
23

31.

Each of the works listed in Exhibit A, has, with authorization of

24 Plaintiffs, exploited in strict confonnity with the provisions of 17 U.S.C. §§ 401
25 and 409, et seq., and all other laws governing federal copyright.
Mitchell
Silberberg &

26

32.

DISH creates Primetime Anytime's "on demand library of

Knupp LLP

27 approximately 100 hours primetime of TV shows" by recording, without
28
4653565.6

15
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

,

.

..

1 authorization, all programming aired by the four national broadcast networks
2

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

3

recorded by DISH through the Primetime Anytime service consists exclusively of

4

copyrighted network programming, including Plaintiffs' copyrighted content. On

5 further information and belief, Defendants' copying in connection with PrimeTime
6 Anytime occurs on a partitioned section of The Hopper's hard drive that is fully
7

under Defendants' ongoing remote control. By creating and distributing

8

unauthorized copies of Plaintiffs' works (including the works listed on Exhibit A)

9 through PrimeTime Anytime in the manner described above, Defendants are

10 engaging in and imminently will engage in a vast number of direct copyright
11

infringements, in violation of sections 106( 1), 106(3) and 501 of the Copyright

12 Act, 17 U.S.C. §§ 106(1), 106(3) and 501.
13

33.

The foregoing acts of direct infringement by Defendants are

14 unauthorized and unlicensed by Plaintiffs and are not otherwise permissible under
15 the Copyright Act. Plaintiffs did not consent to Defendants' copying.
16

34.

These acts of infringement have been willful, intentional, and

17 purposeful, in disregard of Plaintiffs rights under the Copyright Act. Defendants
18 know that their acts are infringing and intentionally or recklessly disregard the law
19

by their conduct.

20

35.

21

These acts have caused and will continue to cause substantial

irreparable harm that cannot fully be compensated or measured in money to

22 Plaintiffs unless further infringement is enjoined and restrained by this Court.
23 Plaintiffs have no adequate remedy at law because damages would be difficult to
24 ascertain and Plaintiffs should not be expected to suffer the blatant infringement.
25 The balance of equities favors Plaintiffs because Defendants could easily cease
Mitchell
Silberberg &

26 their operation of the infringing services whereas Plaintiffs' rights will be

Knupp LLP

27 permanently devalued if the infringing conduct continues. Finally, the public
28
4653565.6

16
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
1

interest favors injunctive relief because the goals of the Copyright Act, including

2

increased creation and output of creative works, will be undermined by the

3

persisting infringements committed by DISH Network Corporation and DISH

4

Network LLC. Pursuant to 17 U.S.C. § 502, Plaintiffs are entitled to preliminary

5 and permanent injunctions prohibiting further infringements of Plaintiffs'
6

copyrights.

7

8

COUNT II

9

(INDUCEMENT OF COPYRIGHT INFRINGEMENT IN VIOLATION OF

10

THE COPYRIGHT ACT, 17 U.S.C. §§ 101, ET SEQ.)

11

12
13

36.

Plaintiffs incorporate by reference each and every allegation set forth

in paragraphs 1 through 31, as though fully set forth herein.
37.

Users of The Hopper's PrimeTime Anytime feature who record all of

14

Plaintiffs' prime-time shows and use the The Hopper's Auto Hop feature to

15

automatically skip commercials otherwise contained in those recordings infringe

16

Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act, 17

17

U.S.C. § 106(1).

18

38.

Users of The Hopper's PrimeTime Anytime feature who record all of

19

Plaintiffs' prime-time shows and who store said recordings permanently or for long

20

periods of time for commercial-free multiple viewings at times of their choosing

21

infringe Plaintiffs' exclusive reproduction rights under section 106 of the

22

Copyright Act, 17 U.S.C. § 106(1).

23
24

25
Mitchell
Silberberg &

39.

Plaintiffs have not authorized such persons to engage in such acts or

consented to such acts.
40.

Defendants have induced the infringing acts of their customers

26

described above, in violation of sections 106 and 501 of the Copyright Act, 17

27

U.S.C. §§ 106 and 501. Defendants provide The Hopper and its PrimeTime

Knupp LLP

28
4653565.6

17
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
1 Anytime and Auto Hop features with the object of promoting their use for
2 infringement.

3

41.

Defendants' conduct demonstrates Defendants' purposeful promotion

4 of infringement. Among other things:

• Defendants have marketed The Hopper expressly for copying and

5
6

creating libraries of Plaintiffs' works and then viewing them

7

commercial free.

8

• Defendants' marketing efforts have included targeting known markets

9

for infringement, including consumers who wish to obtain access to

10

commercial-free programming without payment and consumers who

11

wish to avoid paying market prices for permanent copies of

12

commercial-free programs.
• Defendants have expressly marketed their services as substitutes for

13

14

licensed methods of accessing Plaintiffs' works, including Hulu.com

15

and other video-on-demand services.
• Defendants have refused to use readily available technological means

16
17

to limit or prevent infringement by their customers. In fact,

18

Defendants expressly designed their services to facilitate infringement

19

and make it as easy as practicable to accomplish infringing acts.

20
21

42.

Defendants' inducement of their customers' infringement is, and at all

times has been, willful, intentional, and purposeful, in disregard of Plaintiff's rights

22 under the Copyright Act. Defendants know that their acts are inducing infringing
23 conduct. Defendants intentionally or recklessly disregard the law by their conduct.
24 Plaintiffs have not authorized or consented to Defendants' conduct.
25

43.

Defendants' acts have caused and will continue to cause substantial

Mitchell
Silberberg &

26 irreparable harm that cannot fully be compensated or measured in money to

Knupp LLP

27 Plaintiffs unless further infringement by Defendants is enjoined and restrained by
28
4653565,6

18
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

·.
1 this Court. Plaintiffs have no adequate remedy at law because damages would be
2 difficult to ascertain and Plaintiffs should not be expected to suffer Defendants'
3

blatant infringement. The balance of equities favor Plaintiffs because Defendants

4 could easily cease their operation of the infringing services whereas Plaintiffs'

5 rights will be permanently devalued if the infringing conduct continues. Finally,
6 the public interest favors injunctive reliefbecause the goals of the Copyright Act,
7

including increased creation and output of creative works, will be undermined by

8

the persisting infringements committed by Defendants' customers. Pursuant to 17

9

U.S.C. § 502, Plaintiffs are entitled to preliminary and permanent injunctions

10 prohibiting further infringements of Plaintiffs' copyrights.
11

12

COUNT III

13

(CONTRIBUTORY COPYRIGHT INFRINGEMENT IN VIOLATION OF

14

THE COPYRIGHT ACT, 17 U.S.C. §§ 101,ET SEQ.)

15

44.

Plaintiffs incorporate by reference each and every allegation set forth

16 in paragraphs 1 through 31, inclusive, and 37 through 39, as though fully set forth
17 herein.
18

45.

By participating in, facilitating, assisting, enabling, materially

19 contributing to, and encouraging the infringing reproductions of Plaintiffs' works
20 described above in paragraphs 37 through 39, with full knowledge of their illegal
21

consequences, and with the ability to take simple measures to prevent or limit

22 infringement, Defendants are contributing to infringements of Plaintiffs'
23 copyrighted works, in violation of sections 106 and 501 of the Copyright Act, 17
24 U.S.C. §§ 106 and 501. Defendants make the infringement described above in
25 paragraph s 37-39 possible and provide the site and facilities for the infringements.
Mitchell
Silberberg &

26

46.

Defendants know or have reason to know of the actual or imminent

Knupp LLP

27 infringement of Plaintiff s copyrights. Indeed, on information and belief,
28
4653565.6

19
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
1 Defendants monitor their customers' infringing activity and technologically and
2 personally assist their customers throughout their illegal acts. DISH Networks'

3 service agreement with its customers states that it collects information regarding
4 "the programming service options [customers] have chosen." The agreement also
5 states: "When you use our interactive or other transactional television services, the
6

satellite system automatically collects certain information on your use of these

7

services."

8

47.

Defendants' contributions to their customers' infringement have been

9

willful, intentional, and purposeful, in disregard of Plaintiff's rights under the

lO

Copyright Act. Defendants know that their acts are contributing to infringing

11

conduct and Defendants intentionally or recklessly disregard the law by their

12 conduct. Plaintiffs have not authorized or consented to Defendants' conduct.
13

48.

Defendants' acts have caused and will continue to cause substantial

14 irreparable harm that cannot fully be compensated or measured in money to
15 Plaintiffs unless further infringement by Defendants is enjoined and restrained by
16 this Court. Plaintiffs have no adequate remedy at law because damages would be
17 difficult to ascertain and Plaintiffs should not be expected to suffer Defendants'
18 blatant infringement. The balance of equities favors Plaintiffs because Defendants
19

could easily cease their operation of the infringing services whereas Plaintiffs'

20 rights will be permanently devalued if the infringing conduct continues. Finally,
21

the public interest favors injunctive relief because the goals of the Copyright Act,

22 including increased creation and output of creative works, will be undermined by
23 the persisting infringements committed by Defendants' customers. Pursuant to 17
24 U.S.C. § 502, Plaintiffs are entitled to preliminary and permanent injunctions
25 prohibiting further infringements of Plaintiffs' copyrights.
Mitchell
Silberberg &
Knupp LLP

26
27
28

4653565.6

20
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

,

.

1

COUNT IV

2

(VICARIOUS COPYRIGHT INFRINGEMENT IN VIOLATION OF THE

3

COPYRIGHT ACT, 17 U.S.C. §§ 101, ET SEQ.)

4

49.

Plaintiffs incorporate by reference each and every allegation set forth

5 in paragraphs 1 through 31, inclusive, and 37 through 39, as though fully set forth
6

7

herein.
50.

Defendants have the right and ability to supervise and control the

8 infringing conduct of their customers described above in paragraphs 37 through 39.
9 DISH Networks' contract with their customers states:
10

We may add, delete, rearrange and/or change any and all

11

programming, programming packages and other Services that we

12

offer, as well as the prices and fees related to such programming,

13

programming packages and Services, at any time, including without

14

limitation, during any term commitment period to which you have

15

agreed.

16

51.

Defendants' regular involvement in their customers' copying is an

17 indispensable link in such infringing conduct. Defendants control their customers'
18 ability to record prime-time content using the Primetime Anytime feature. In
19 addition, Defendants go to great lengths and efforts to enable their customers to
20 skip entire commercial segments. On information and belief, in order to achieve
21

this goal, Defendants must study the shows that are transmitted and "push" certain

22 data to the Hopper devices resident in the homes of customers. Absent
23 Defendants' conduct, customers simply could not automatically skip commercials.
24

52.

On information and belief, all of the infringing activity is actively

25 monitored by Defendants. DISH Networks' service agreement with its customers
Mitchell
Silberberg &

26 states that it collects information regarding "the programming service options

Knupp LLP

27 [customers] have chosen." The agreement also states: "When you use our
28
4653565.6

21
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

..
1 interactive or other transactional television services, the satellite system
2

3
4

automatically collects certain information on your use of these services."
53.

Defendants also receive a direct financial benefit from the

infringement described above in paragraph 37 through 39 above. Plaintiffs are

5 informed and believe, and therefore allege, that Defendants have attracted,
6

obtained and retained customers as a result of its infringing offerings. The

7

PrimeTime Anytime and Auto Hop features constitute draws to Defendants'

8

services. Defendants actively advertise the infringing capabilities of The Hopper.

9

Defendants also receive subscription payments from customers who possess The

10
11

Hopper.
54.

Defendants' refusal to stop or limit its customers' infringements has

12 been willful, intentional, and purposeful, in disregard of Plaintiffs rights under the
13 Copyright Act. Plaintiffs have not authorized or consented to Defendants'
14 conduct.
15

55.

Defendants' acts have caused and will continue to cause substantial

16 irreparable harm that cannot fully be compensated or measured in money to
17 Plaintiffs unless further infringement by Defendants is enjoined and restrained by
18 this Court. Plaintiffs have no adequate remedy at law because damages would be
19 difficult to ascertain and Plaintiffs should not be expected to suffer Defendants'
20 blatant infringement. The balance of equities favor Plaintiffs because Defendants
21

could easily cease their operation of the infringing services whereas Plaintiffs'

22 rights will be permanently devalued if the infringement continues. Finally, the
23 public interest favors injunctive relief because the goals of the Copyright Act,
24 including increased creation and output of creative works, will be undermined by
25 the persisting infringements committed by Defendants' customers. Pursuant to 17
Mitchell
Silberberg &

26 U.S.C. § 502, Plaintiffs are entitled to preliminary and permanent injunctions

Knupp LLP

27 prohibiting further infringements of Plaintiffs' copyrights.
28
4653565.6

22
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

.'
PRAYER FOR RELIEF

1
2
3
4

WHEREFORE, Plaintiffs pray that this Court enter judgment in their favor
and against Defendants, and each of them, as follows:
(a)

On Counts I through IV, preliminarily and permanently enjoin,

5 pursuant to 17 U.S.C. § 502, Defendants, their respective officers, agents, servants,
6

employees, and those persons in active concert or participation with Defendants, or

7

any of them, from inducing infringement or directly, contributorily, and/or

8

vicariously infringing by any means, including but not limited to specifically in

9

connection with The Hopper's PrimeTime Anytime and Auto Hop features,

10

Plaintiffs' exclusive rights under the Copyright Act, including, but not limited to

11

any of Plaintiffs' rights in any of the works listed on Exhibit A, and from licensing

12

any other person to do the same;

13

(b)

award Plaintiffs statutory damages in accordance with 17 U.S.C. §

14 504 and other applicable law;
15

(c)

award Plaintiffs costs and reasonable attorneys' fees in accordance

16 with 17 U.S.C. § 505, and other applicable law; and
17

(d)

award Plaintiffs such further and additional relief as the Court may

18 deem just and proper.
19

20
21

22

DATED: May 24,2012

ROBERT H. ROTSTEIN
PATRICIA H. BENSON
JEAN PIERRE NOGUES
MITC LL SILBERBERG & KNUPP LLP

23
24
25
Mitchell
Silberberg &

26

Attorneys for Plaintiffs)
NBC Studios LLC, Umversal Network
Television LLC Open 4 Business Productions
LLC, and NBCUmversal Media, LLC,

Knupp LLP

27
28

23
COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,
AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

, ,

.,
EXHIBIT A - SCHEDULE OF WORKS

1.

2.

What Will Happen to the Gang Next Year?, 30 Rock (application for copyright
registration filed May 18, 2012) - NBC Studios LLC.

3.

BeeWare, Grimm (copyright registration no. PA 1-765-480, Nov. 23, 2011) - Open 4
Business Productions LLC.

4.

Three Coins in a Fuchsbau, Grimm (copyright registration no. P A 1-778-887, Mar. 8,
2012) - Open 4 Business Productions LLC.

5.

Plumed Serpent, Grimm (copyright registration no. PA 1-780-055, Mar. 16,2011) - Open
4 Business Productions LLC.

6.

Island of Dreams, Grimm (application for copyright registration filed April 4, 2012)Open 4 Business Productions LLC.

7.

Theatre Tricks, Law & Order SVU (copyright registration no. PA 1-774-128, Jan. 26,
2012) - Universal Network Television LLC.

8.

Trivia, The Office (copyright registration no. PA 1-774-146, Jan. 26, 2012) - Universal
Network Television LLC.

9.

Jury Duty, The Office (copyright registration no. PA 1-776-312, Feb. 13,2012)Universal Network Television LLC.

10.

Special Project, The Office (copyright registration no. PA 1-775-976, Feb. 16,2012)Universal Network Television LLC.

11.

Tallahassee, The Office (copyright registration no. PA 1-77-493, Feb. 29, 2012)Universal Network Television LLC.

12.

Pawnee Rangers, Parks and Recreation (copyright registration no. PA 1-756-487, Oct. 20,
2011) - Open 4 Business Productions LLC.

13.

The Comeback Kid, Parks and Recreation (copyright registration no. PA 1-774-147, Jan.
26,2012) - Open 4 Business Productions LLC.

14.

Win, Lose, or Draw, Parks and Recreation (application for copyright registration filed
May 18,2012) - Open 4 Business Productions LLC.

15.

4653865.1

The Return of Avery Jessup, 30 Rock (application for copyright registration filed May
18,2012) - NBC Studios LLC.

Bombshell, Smash (application for copyright registration filed May 18, 2012) - NBC
Studios LLC.

,1
Page .iii:

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16.

17.

48 Hours, Whitney (copyright registration no. PA 1-777-488, Feb. 29,2012) - NBC
Studios LLC.

18.

Mad Women, Whitney (copyright registration no. PA 1-777-464, Feb. 29, 2012) - NBC
Studios LLC.

19.

4653865.1

Private Parts, Whitney (copyright registration no. PA 1-773-957, Jan. 13,2012) - NBC
Studios LLC.

Dateline NBC 5/18/12 (application for copyright registration filed May 24,2012)NBCUniversal Media LLC

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