2193255.2 Nos. 13-55156, 13-55157, 13-55226, and 13-55228 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______________________ FOX TELEVISION STATIONS, INC., et al., Plaintiffs-Appellees / Cross-Appellants, v. AEREOKILLER, LLC, et al., Defendants-Appellants / Cross-Appellees ______________________ On Appeal from the United States District Court for the Central District of California Case Nos. CV-12-6921-GW and CV-12-6950-GW District Judge George H. Wu ______________________ BRIEF OF THE FOX APPELLEES/CROSS-APPELLANTS ______________________ Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington DC 20001 Attorneys for Plaintiff-Appellees and Cross-Appellants Fox Television Stations, Inc., Twentieth Century Fox Film Corp., and Fox Broadcasting Company Case: 13-55156 04/26/2013 ID: 8607331 DktEntry: 44 Page: 1 of 75
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Fox v. Aereokiller - Brief of the Fox Appellees - Cross-Appellants
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2193255.2
Nos. 13-55156, 13-55157, 13-55226, and 13-55228
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ______________________
FOX TELEVISION STATIONS, INC., et al.,
Plaintiffs-Appellees / Cross-Appellants,
v.
AEREOKILLER, LLC, et al.,
Defendants-Appellants / Cross-Appellees
______________________
On Appeal from the United States District Court
for the Central District of California Case Nos. CV-12-6921-GW and CV-12-6950-GW
District Judge George H. Wu ______________________
BRIEF OF THE FOX APPELLEES/CROSS-APPELLANTS
______________________
Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071
Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington DC 20001
Attorneys for Plaintiff-Appellees and Cross-Appellants Fox Television Stations, Inc., Twentieth Century Fox Film Corp., and Fox
I. The District Court Correctly Held That The Broadcasters Are Likely To Succeed On The Merits .................................................................. 20
A. Aereokiller Publicly Performs The Broadcasters’ Copyrighted Programs ................................................................................... 20
B. Systems Using Mini-Antennas And Individual Copies Are Not Exempt From The Transmit Clause .......................................... 22
C. The District Court Correctly Rejected Cablevision ..................... 25
1. The Cablevision Court Confused The Terms “Performance” And “Transmission.” ............................. 25
2. The Reasoning That Led The Cablevision Court To Hold That Each Transmission Is A Separate Performance Was Flawed .................................................................... 29
3. Reading The Statute Correctly Would Not Make All Performances Public ....................................................... 33
4. A Public Performance Does Not Require A Master Copy .................................................................... 35
5. Cablevision Is Not Only Wrong, But Also Distinguishable ............................................................... 40
D. Aereokiller’s Subscribers Are Not Transmitting The Programming To Themselves Using “Remote Equipment.” .... 41
E. Aereokiller Does Not Have A Fair Use Defense .......................... 45
II. The District Court Correctly Concluded That Each Of The Relevant Factors Supported A Preliminary Injunction ...................................... 50
A. The District Court Correctly Found That Aereokiller’s Illegal Service Would Irreparably Harm The Broadcasters ................. 50
B. The District Court Correctly Found That The Balance Of Hardships Favored An Injunction ............................................. 56
C. The District Court Correctly Found That An Injunction Would Serve The Public Interest .......................................................... 58
JOINDER IN THE ABC PARTIES’ CROSS-APPEAL ARGUMENTS ............... 61
Am. Broad. Cos., Inc. v. Aereo, 874 F. Supp. 2d 373 (S.D.N.Y. 2012) .........................................................passim
AMP Inc. v. Foxconn Int’l, Inc., No. 93-1162, 1994 WL 315889 (C.D. Cal. Mar. 7, 1994) ................................. 57
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) ............................................................................. 57
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ........................................................................................ 7, 48
Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) ............................................................................... 35
Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989) ........................................................................ 44, 45
Cont’l Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099 (9th Cir. 1994) .............................................................................. 55
Corley v. United States, 556 U.S. 303 (2009) ............................................................................................ 28
Credit Bureau Connection, Inc. v. Pardini, 726 F. Supp. 2d 1107 (E.D. Cal. 2010) ............................................................. 55
Cuviello v. City of Oakland, No. 06-5517, 2007 WL 2349325 (N.D. Cal. Aug. 15, 2007) ............................. 57
eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) .............................................................. 54
Eldred v. Ashcroft, 537 U.S. 186 (2005) ............................................................................................ 58
Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) .............................................................................. 56
Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) .....................................................................................passim
Fox Broadcasting Co. v. Dish Network, LLC, --- F. Supp. 2d ---, 2012 WL 5938563 (C.D. Cal. Nov. 7, 2012) ................. 49, 50
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079 (7th Cir. 2008) ............................................................................ 52
Helene Curtis Indus. v. Church & Dwight Co., Inc., 560 F.2d 1325 (7th Cir. 1977) ............................................................................ 57
MGM Studios, Inc. v. Grokster, 545 U.S. 913 (2005) ...................................................................................... 59, 60
Mullins v. City of N.Y., 626 F.3d 47 (2d Cir. 2010) ................................................................................. 53
Nat’l Football League v. TVRadioNow Corp., Nos. 00-120, 00-121, 2000 WL 34200602 (W.D. Pa. Feb. 29, 2000) ................. 3
On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) ..............................................................passim
Rent-A-Center, Inc. v. Canyon Tel. & Appliance Rental, Inc., 944 F.2d 597 (9th Cir. 1991) .............................................................................. 54
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ........................................................................ 21, 31
SoftMan Prods. Co. LLC v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) .............................................................. 61
Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984) ...................................................................................... 48, 49
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ........................................................................ 52, 54
Twentieth Century Fox Film Corp. v. iCraveTV, Nos. 00-120, 00-121, 2000 WL 255989 (W.D. Pa. Feb. 8, 2000) ..... 3, 51, 52, 54
Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 192 F. Supp. 2d 321 (D.N.J. 2002) ..................................................................... 46
Warner Bros. Entm’t Inc. v. WTV Systems, Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011) .......................................................passim
CBS Broad. Inc. v. FilmOn.com, Inc., No. 10-7532, ECF No. 49 (S.D.N.Y. Aug. 9, 2012) .............................. 51, 52, 54
H. Comm. on the Judiciary, 89th Cong., 1st Sess., Supplemental Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 13-14 (Comm. Print 1965) ......................................................................... 23
Jane C. Ginsburg, Recent Developments in US Copyright Law – Part II, Caselaw: Exclusive Rights on the Ebb?, Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08158, (2008) ........................... 27
Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists In Poor (Cable)Vision, The Media Institute (Apr. 23, 2013) .......................................... 28
Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or. L. Rev. 505, 536 (2011) ......................................... 29
Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2012) ............. 37, 38
Paul Goldstein, Goldstein on Copyright § 7.7.2 (3d ed. 2008) ......................... 24, 28
Wright, Miller & Kane, Federal Practice & Procedure § 2948.1 (2d ed. 1995) ................................................................................................................... 53
paying for the same licenses these other services pay for. In 2008, the
Second Circuit held in Cablevision that a cable provider licensed to
retransmit broadcast programming could offer a remote DVR service
without having to take a second license to cover the transmissions from the
cable company’s remote server that occurred when the subscribers played
back the recorded programs. See 536 F.3d at 140-41. The Cablevision
Court’s analysis was that these playback transmissions were private, because
they emanated from unique copies made by subscribers, and each
transmission could only be received by the subscriber who had copied the
program. Id. at 134-35.
Aereokiller designed its system to use thousands of miniature
antennas and digital copies to retransmit the programming, so it can claim
that its transmissions are “private” under Cablevision.2 In other words,
Aereokiller would contend that when one million people go on its website
Thursday night at 8:00 pm and watch Glee, there is no public performance
by Aereokiller – just one million private performances of Glee that
Aereokiller is making money from without paying a dime to the company
2 The Broadcasters do not know whether this is really how Aereokiller’s system works, since they were denied expedited discovery regarding the details of Aereokiller’s technology, ER 1948-50, but will assume for the purpose of this appeal that Aereokiller’s description of its system is accurate.
Copyright Act . . . Congress concluded that cable operators should be
required to pay royalties to the owners of copyrighted programs
retransmitted by their systems on pain of liability for copyright
infringement.”); see also H.R. Rep. No. 94-1476, at 88-89 (1976), 1976
U.S.C.C.A.N. 5659, 5702-5704 (“cable systems are commercial enterprises
whose basic retransmission operations are based on the carriage of
copyrighted program material and . . . copyright royalties should be paid by
cable operators to the creators of such programs”) (the “1976 Report”).3
The Transmit Clause was enacted specifically to bring retransmission
of broadcast programming within the performance right, in response to prior
Supreme Court cases holding that cable systems did not “perform”
copyrighted television programs when they captured broadcast signals and
delivered them over cable wire to their subscribers. E.g. Fortnightly Corp.
v. United Artists Television, Inc., 392 U.S. 390, 399-400 (1968). The
rationale of these cases – which Congress rejected – was that cable systems
3 Section 111 of the Copyright Act creates a statutory license that permits cable services to retransmit broadcast signals to their subscribers, provided they pay royalties at government-regulated rates and abide by the statute’s procedures. ivi, 691 F.3d at 278. Services that retransmit broadcast programming over the internet are not entitled to take advantage of the statutory license; internet services must negotiate a license or incur liability for copyright infringement. Id. at 278-85.
Clause based on its plain language but instead followed Cablevision’s
interpretation. Id. at *6, 13. Thus, the majority held that Aereo does not
publicly perform the Broadcasters’ copyrighted programming by streaming
it live over the internet to subscribers because every subscriber watching live
television on Aereo receives an individual transmission from a “unique
copy” of the program. Id. at *5-9.
Judge Chin filed a sharp dissent, characterizing Aereo’s system as a
“sham” and a “Rube Goldberg-like contrivance, over-engineered in an
attempt to avoid the reach of the Copyright Act and to take advantage of a
perceived loophole in the law.” 2013 WL 1285591 at *15. The dissent
explains why the plain language of the Transmit Clause compels the
conclusion that Aereo publicly performs broadcast programming:
It is apparent that Aereo’s system falls squarely within the plain meaning of the statute . . . . The statute is broadly worded, as it refers to “any device or process.” Aereo’s system of thousands of antennas and other equipment is clearly a “device or process.” Using that “device or process,” Aereo receives copyrighted images and sounds and “transmit[s] or otherwise communicate[s] them to its subscribers “beyond the place from which they are sent[.]” . . . The “performance or display of the work” is then received by paying subscribers “in separate places” and “at different times.”
The Copyright Act grants copyright owners the exclusive right to
perform their copyrighted works publicly. 17 U.S.C. § 106(4). Section 101
of the Act defines what it means to perform a work “publicly.” Under the
Transmit Clause, “to perform a work publicly” is:
to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Id. § 101.
A television program is performed when its images and sounds are
played. 17 U.S.C. § 101 (definition of “perform” an “audiovisual work”).
To “transmit a performance” is to “communicate it by any device or process
whereby images or sounds are received beyond the place from which they
are sent.” Id. And a “device or process” includes “one now known or later
developed.” Id.
Aereokiller publicly performs the Broadcasters’ programs within the
plain language of the statute. For example, Aereokiller performs the Fox
program Glee when it retransmits Glee by capturing Fox’s signal on its
underscored by the statute’s definition of “device or process,” which
includes those “now known or later developed.” Id.
The legislative history further confirms Congress’s intent to include
all possible technologies within the Transmit Clause:
The definition of “transmit” . . . is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in any form, the case comes within the scope of clauses (4) or (5) of section 106.
1976 Report at 64 (emphasis added); see also id. at 63 (a “performance may
be accomplished ‘either directly or by means of any device or process,’
including all kinds of equipment for reproducing or amplifying sounds or
visual images, any sort of transmitting apparatus, any type of electronic
retrieval system, and any other techniques and systems not yet in use or even
invented”) (emphasis added); H. Comm. on the Judiciary, 89th Cong., 1st
Sess., Supplemental Report of the Register of Copyrights on the General
Revision of the U.S. Copyright Law, 13-14 (Comm. Print 1965) (“[T]he bill
should, we believe, adopt a general approach aimed at providing
compensation to the author for future as well as present uses of his work that
the members of the public capable of receiving the performance transmission or display receive it the transmission in the same place or in separate places and at the same time or at different times.
Applying its revised version of the Transmit Clause, the Second
Circuit reasoned that unless a single transmission is capable of being
received by multiple people, the transmitter has not infringed the public
performance right. 536 F.3d at 134-40.
This was wrong. As defined by the statute, a “transmission” and a
“performance” are not the same thing. To transmit a performance is to
“communicate it by any device or process whereby images or sounds are
received beyond the place from which they are sent.” 17 U.S.C. § 101. This
tells us that the “performance” is the thing that is communicated and the
transmission is the means of communicating the performance. As Judge Wu
correctly explained, the Transmit Clause, properly read, says that
“transmitting a performance to the public is a public performance.” ER 5. It
“does not by its express terms require that two members of the public
receive the performance from the same transmission.” ER 6.
Moreover, the fact that the Transmit Clause states that transmitting a
performance to the public is a public performance even if the members of
the public capable of receiving the performance receive it “at different
times” confirms that Congress envisioned multiple transmissions of the
Ginsburg, supra, at 26 (“the court confused ‘performance’ and
‘transmission’”); Jeffrey Malkan, The Public Performance Problem in
Cartoon Network LP v. CSC Holdings, Inc., 89 Or. L. Rev. 505, 536 (2011)
(the court “thought that the words ‘performance’ and ‘transmission’ were
interchangeable . . . [but] a transmission and a performance remain,
technically and legally, two distinct things”); id. at 553 (“The principal error
in the court’s application of the transmit clause was that it substituted the
word ‘transmission’ for the word ‘performance’ in the phrase ‘capable of
receiving the performance[.]’”).
2. The Reasoning That Led The Cablevision Court To Hold That Each Transmission Is A Separate Performance Was Flawed.
Cablevision’s reading of the Transmit Clause is illogical and not
grounded in the statute’s text. This is how the Cablevision Court reached its
interpretation of the statute:
The statute itself does not expressly define the term “performance” or the phrase “to the public.” It does explain that a transmission may be “to the public . . . whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times. This plain language instructs us that in determining whether a transmission is to the public it is of no moment that the potential recipients of the transmission are in different places, or that they may receive the transmission at different times. The implication
from this same language, however, is that it is relevant, in determining whether a transmission is made to the public, to discern who is “capable of receiving” the performance being transmitted. The fact that the statute says “capable of receiving the performance” instead of “capable of receiving the transmission” underscores the fact that a transmission of a performance is itself a performance.
536 F.3d at 134 (emphasis added, internal citation omitted).
Each underlined word or phrase is a problem. First, the Transmit
Clause does not “explain that a transmission may be to the public . . . .” Nor
does the Transmit clause require us to “determin[e] whether a transmission
is to the public.” The Transmit Clause says it is a public performance to
“transmit” a “performance” of the work to the public. See 17 U.S.C. § 101.
This does not necessarily require a single transmission to the public, as the
Cablevision Court seemed to believe. Rather, one can transmit a television
program to the public either by transmitting it once to many people (like a
television broadcast) or by transmitting it numerous times to many different
people (like video-on-demand). Judge Wu recognized this. ER 6 (“The
statute provides an exclusive right to transmit a performance publicly, but
does not by its express terms require that two members of the public receive
Moreover, “[t]he fact that the statute says ‘capable of receiving the
performance’ instead of ‘capable of receiving the transmission’” does not
“underscore . . . that a transmission of a performance is itself a
performance.” 536 F.3d at 134. This statement by the Cablevision Court is
a non-sequitur. In actuality, the fact that the statute says “‘capable of
receiving the performance’ instead of ‘capable of receiving the
transmission’” tells us that a performance made available by transmission is
a public performance if members of the public are capable of receiving the
performance. After all, we are supposed to assume that Congress meant
what it said. Satterfield, 569 F.3d at 951.
The Cablevision Court attempted to support its reading of the statute
with language from the House Report on the 1976 Copyright Act, which
said:
Under the bill, as under the present law, a performance made available by transmission to the public at large is “public” even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service.
3. Reading The Statute Correctly Would Not Make All Performances Public.
The Cablevision Court attempted to support its interpretation of the
Transmit Clause by stating that any other interpretation would “obviate[]
any possibility of a purely private transmission.” 536 F.3d at 136. It used
two examples to illustrate this point:
Assume that HBO transmits a copyrighted work to both Cablevision and Comcast. Cablevision merely retransmits the work from one Cablevision facility to another, while Comcast retransmits the program to its subscribers. Under plaintiffs' interpretation, Cablevision would still be transmitting the performance to the public, solely because Comcast has transmitted the same underlying performance to the public. Similarly, a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom would be liable for publicly performing the work simply because some other party had once transmitted the same underlying performance to the public.
Id.
In other words, the Cablevision Court presumed that if each
transmission was not viewed in isolation, then all transmissions of the same
program by everyone in the universe would be viewed collectively as a
public performance, making everyone who had ever transmitted that
program an infringer. This is bizarre. In the Cablevision-Comcast
hypothetical, Cablevision has not publicly performed the program because
music file she owns is not publicly performing either; she is listening to her
own music in private.6
4. A Public Performance Does Not Require A Master Copy.
The Cablevision Court’s second critical error was its holding that if a
system transmits copyrighted programs from unique, subscriber-associated
copies, then each transmission is private. 536 F.3d at 138. This allowed the
Court to square its interpretation of the Transmit Clause with other cases
where courts found individualized transmissions to members of the public
from a master copy to be public performances. E.g., Columbia Pictures
6 Aereokiller and its amici insist that if the Transmit Clause is read properly, then companies which purportedly relied on Cablevision to design “cloud storage” or “cloud computing” services will be harmed. Aereokiller is not a cloud storage service (nor is Aereo, despite what it claims in its amicus brief). Aereo and Aereokiller are services that retransmit broadcast television over the internet. As far as the Broadcasters are aware, it is not possible for a consumer to upload a file she owns and store it on Aereo or Aereokiller. Moreover, as the briefs of Aereokiller’s amici demonstrate, “cloud computing,” “cloud service,” “cloud storage” and the like are amorphous terms that companies use to describe a wide variety of different types of internet services. Some companies that refer to themselves as “cloud services” publicly perform copyrighted works under the Transmit Clause (e.g., Aereo). Others do not. Some of these services are licensed; others are not. Holding that Aereokiller is committing copyright infringement under the plain language of the statute would not mean that all “cloud computing” would become illegal. Indeed, it would not even mean that the Cablevision RS-DVR would become illegal. A reasonable court might conclude that transmissions to individual cable subscribers of shows they had chosen to have recorded on the RS-DVR do not constitute public performances.
video store is publicly performing the movie because other people rented
and watched that same copy:
In the abstract, it may be argued that the practice of renting a given videocassette of a motion picture to various members of the public gives rise to “public” performances of the work, although each such performance of the work on a home television set is received only by an individual or family group. Nevertheless, the same copy gives rise to numerous performances, which are received by the public “at different times.” Therefore, under the wording of the Act, and by reason of the underlying rationale of what constitutes a “public” performance, it may follow that each individual rental performance is a “public” performance.
Nimmer on Copyright § 8.14[C][3].
A person sitting in his living room watching a DVD of Braveheart
that he rented from Blockbuster is not publicly performing Braveheart. This
is because he is neither playing the DVD at a place open to the public nor
transmitting Braveheart to members of the public, as the statute requires.
See 17 U.S.C. § 101.
Under Professor Nimmer’s analysis, four people who happened to rent
the same DVD copy of Braveheart from Blockbuster would each be liable
for publicly performing Braveheart by virtue of the fact that they all
watched the same copy. Yet Aereokiller could retransmit the Super Bowl to
thousands of subscribers without a license, and these would be deemed
log onto Aereokiller’s web site or mobile application and watch live
broadcast programming streamed over the internet. ER 1345-49, 1375-80,
1403-14; see also ER 933-34 (Aereokiller admitting its system receives,
encodes, and distributes programming over the internet). The only thing the
viewer does is choose a program to watch, just as she would on a television.
No court would seriously entertain an argument by a cable or satellite
provider that it does not need a license because it merely allows its
subscribers to use remote technology – i.e., antennas and cable wires, or a
satellite dish – to transmit television programming to themselves.
Aereokiller is no different.
Aereokiller is not the first service provider to try to skirt liability for
transmitting copyrighted works by pretending its customers are merely
controlling technology remotely. For example, the defendant in On
Command tried to argue that its system for transmitting movies from a
central bank of VCRs to hotel room televisions was not actually transmitting
movies to hotel rooms; instead, it characterized its service as merely
allowing guests to rent movies electronically. On Command, 777 F. Supp. at
789. The court found this argument to be “without merit,” holding that:
On Command transmits movie performances directly under the language of the definition. The system “communicates” the motion picture “images and sounds” by a “device or process” –
the equipment and wiring network – from a central console in the hotel to individual guest rooms, where the images and sounds are received “beyond the place from which they are sent.” The fact that the hotel guests initiate this transmission by turning on the television and choosing a video is immaterial.
Id. at 789-90 (emphasis added, internal citations omitted).
Likewise, in WTV Systems, Zediva tried to argue that its system for
streaming movies over the internet from a central bank of DVD players was
not transmitting movies over the internet to its customers. 824 F. Supp. 2d
at 1009. Instead, according to Zediva, its customers were merely renting
DVDs remotely. Id. The court rejected this argument, holding that the
“Zediva service transmits performances of Plaintiffs’ Copyrighted Works
directly under the language of the statute . . . . As in On Command, the fact
that Zediva’s customers initiate the transmission by turning on their
computers and choosing which of Plaintiffs’ Copyrighted Works they wish
to view is immaterial.’” Id. at 1009-10.
As in On Command and WTV, Aereokiller is transmitting
performances of the copyrighted programs under the plain language of the
statute. Aereokiller communicates the images and sounds of the
copyrighted programs through the use of a “device or process” –
Aereokiller’s antenna farm, routers, transcoders, etc. The images and
1988) (“Where the only hardship that the defendant will suffer is lost profits
from an activity which has been shown likely to be infringing, such an
7 The Broadcasters do not rely on any presumption of irreparable harm that may flow from their demonstrating a likelihood of success on the merits of their copyright claims. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 998 (9th Cir. 2011). To the contrary, the Broadcasters proved with uncontroverted evidence all of the harms identified in their preliminary injunction motion – including the impact on advertising and retransmission consent negotiations, damage to the Broadcasters’ efforts to develop a lawful internet distribution system through licensing, undermining the Broadcasters’ own web offerings – and each has been found irreparable in one or more of the cases that has addressed the issues being litigated here. ER 1457-69.
Plaintiffs are copyright owners of some of the world’s most recognized and valuable television programming. Plaintiffs’ television programming provides a valuable service to the public, including, inter alia, educational, historic, and cultural programming, entertainment, an important source of local news critical for an informed electorate, and exposure to the arts. . . . Plaintiffs’ desire to create original television programming surely would be dampened if their creative works could be copied and streamed over the Internet in derogation of their exclusive property rights.
691 F.3d at 288 (internal citation omitted).
Aereokiller contends that enjoining its illegal service undermines the
public interest in technological innovation. AOB at 36. This argument
misstates the facts. Aereokiller is not a technology innovator and the
injunction issued by Judge Wu does not ban any innovative technology.
Aereokiller did not invent miniature antennas, routers, servers, transcoders
and the like. This is not a case where the defendant is making a technology
available that others can use to infringe, and where the Court has to evaluate
whether holding the defendant secondarily liable for infringing acts by
others would chill innovation. See, e.g., MGM Studios, Inc. v. Grokster, 545
U.S. 913, 928-29 (2005). This is a case where Aereokiller is using (or
purports to be using) technology in a way it wrongly believes allows it to
circumvent copyright law and retransmit copyrighted programming to the
internet licensees, and over the Broadcasters’ own websites and internet
services. ER 1461-64. For all of these reasons, an injunction would serve
all of the public interests implicated by copyright law.8 See id.; WTV Sys.,
824 F. Supp. 2d at 1015.
JOINDER IN THE ABC PARTIES’ CROSS-APPEAL ARGUMENTS
The Fox Parties hereby join and incorporate by reference the
arguments presented by the ABC Parties in support of the cross-appeal
relating to the geographic scope of Judge Wu’s injunction.
CONCLUSION
For the reasons stated above, this Court should affirm the district
court’s decision to enjoin Aereokiller’s unauthorized broadcast
retransmission service pending a final judgment, and extend the preliminary
injunction nationwide.
8 Aereokiller’s purported reliance on SoftMan Prods. Co. LLC v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) is misplaced. In that case, Adobe attempted to characterize transactions involving its software products as licenses, rather than sales subject to the first use doctrine. See id. at 1088-89. The court was concerned about Adobe’s apparent attempt to expand its ability to control software prices through licensing. Id. at 1090-91. This case is vastly different. The Broadcasters make their broadcast television programming available over the internet and on-demand from a variety of licensed sources, and are working to expand consumer access to their content in these nascent markets.
Pursuant to Federal Rule of Appellate Procedure 34(a), the Fox
Appellees and Cross-Appellants request that oral argument of this appeal be
permitted. Oral argument will assist this Court in deciding the appeal.
April 26, 2013 Respectfully Submitted,
By: ___/s Paul M. Smith________ Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001
Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees And Cross-Appellants
I certify that, pursuant to Federal Rule of Appellate Procedure
32(a)(7)(C) and Ninth Circuit Rule 32-1, the foregoing Brief is
proportionately spaced, has a typeface of 14 points or more, and contains
12,792 words.
April 26, 2013 Respectfully Submitted,
By: ___/s Paul M. Smith________ Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001
Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees And Cross-Appellants
Pursuant to Ninth Circuit Rule 28-2.6, counsel for the Fox Appellees
and Cross-Appellants states that other than the four consolidated appeals and
cross-appeals – Case Nos. 13-55156, 13-55157, 13-55226, and 13-55228 –
there are no related cases pending in this Court.
April 26, 2013 Respectfully Submitted,
By: ___/s Paul M. Smith________
Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001
Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees And Cross-Appellants
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:
Signature (use "s/" format)
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System