Fox Television Stations, Inc. v. Barrydriller Content Sys.

• Decision Date: 27 December 2012
• Docket Number: Case No. CV 12–6921–GW(JCx).
• Citation: 915 F.Supp.2d 1138
• Parties: FOX TELEVISION STATIONS, INC., et al. v. BARRYDRILLER CONTENT SYSTEMS, PLC, et al.
• Court: U.S. District Court — Central District of California

915 F.Supp.2d 1138

FOX TELEVISION STATIONS, INC., et al.

v.BARRYDRILLER CONTENT SYSTEMS, PLC, et al.

Case No. CV 12–6921–GW(JCx).

United States District Court, C.D. California.

Dec. 27, 2012.

Order Entering Injunction Dec. 27, 2012.

Julie A. Shepard, Richard Lee Stone, Los Angeles, CA, for Plaintiffs.

Ryan G. Baker, Jaime W. Marquart, Los Angeles, CA, for Defendants.

PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

GEORGE H. WU, District Judge.

Court hears oral argument. The Tentative Final Ruling circulated and attached hereto, is adopted as the Court's final ruling. The Court GRANTS IN PART/DENIES IN PART Plaintiffs' motion for preliminary injunction. Court signs the proposed order.

The Court accepts the following stipulation placed on the record:

1. Within two weeks of today's date, Plaintiffs shall receive a representation or representations under oath from an officer competent to speak for both Aereokiller and FilmOn with respect to the mini antennae for each applicable local station are located in the locality for that local station defined as the Nielson DMA for each particular local station.

2. All statements in slide number 5 of the technology tutorial presented by defendants entitled Aereokiller's Mini Antenna Technology (attached as Exhibit A) in fact occur completely within the locality of each applicable local station that is retransmitted defined as the local DMA. This includes the web server, antenna router, antenna tuner, server, Aereokiller antennas, the encoder, the DVR folders, and the delivery or sometimes called the streaming server.

3. None of these steps are accomplished by backhaul or any other method whereby the signal comes through the Ninth Circuit and goes back out to these local DMAs.

I. Introduction

Plaintiffs Fox Television Stations, Inc., Twentieth Century Fox Film Corp., and Fox Broadcasting Co., Inc. (in CV–12–6921), and Plaintiffs NBCUniversal Media LLC, Universal Network Television LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC–TV) LLC, Telemundo Network Group LLC, WNJU–TV Broadcasting LLC, American Broadcasting Companies, Inc., ABC Holding Company Inc., Disney Enterprises, Inc., CBS Broadcasting Inc., CBS Studios Inc., and Big Ticket Televison, Inc. (in CV–12–6950) (collectively, “Plaintiffs”) moved for a preliminary injunction against Defendants Aereokiller LLC, Alkiviades “Alki” David, FilmOn.TV Networks, Inc., Filmon.TV, Inc., and FilmOn.com, Inc. (collectively, “Defendants”).¹ Plaintiffs filed an identical motion in each action. Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction (“Mot.”), Docket No. 49 at 1 n. 1.²

Plaintiffs produce and license the distribution of copyrighted works that appear on free, over-the-air broadcast television networks. Id. at 4. ³ Plaintiffs also license that programming for distribution through cable and satellite television, and through services such as Hulu.com and Apple's iTunes. Id. at 5. Plaintiffs accuse Defendants of offering their copyrighted content through internet and mobile device streaming. Id. at 5. Defendants do not deny that they retransmit Plaintiffs' copyrighted broadcast programming, but argue that their service is legal because it is technologically analogous to the service which the Southern District of New York found to be non-infringing in Am. Broad. Cos. v. AEREO, Inc., 874 F.Supp.2d 373 (S.D.N.Y.2012)( “Aereo” ).⁴ Defendants contend that their systems are “better and more legally defensible than Aereo's,” but that the systems are similar in allowing users to use an individual mini digital antenna and DVR to watch or record a free television broadcast.” Opp'n., Docket No. 46 at 1. Defendants characterize their system as offering “a user-directed private viewing of already available, free over-the-air television content using the same antenna and tuner technology employed by consumers for years.” Id.⁵

II. Legal StandardsA. Preliminary Injunctive Relief

A plaintiff seeking a preliminary injunction must establish: (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).⁶

B. Geographical Reach of Injunction Where Circuit Split Present

Courts should not issue nationwide injunctions where the injunction would not issue under the law of another circuit.

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncementsof such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

United States v. AMC Entm't, Inc., 549 F.3d 760, 773 (9th Cir.2008) (reversing grant of nationwide injunction).

C. Copyright Infringement

Plaintiffs must meet two requirements to present a prima facie case of direct infringement: (1) ownership of the infringed material, and (2) violation of at least one exclusive right granted to copyright holders under 17 U.S.C. § 106 by the infringer. A & M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001).⁷

III. AnalysisA. The Court Would Grant In Part and Deny In Part Defendants' Request for Judicial Notice

Defendants request that the Court take judicial notice of a scheduling order and two amicus briefs filed in Aereo. Docket No. 46–1. Under Fed.R.Evid. 201, the Court can take judicial notice of “a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Courts may take judicial notice of another court's opinion for the existence of the opinion, but not for the truth of the facts recited therein. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). The Court would take judicial notice of the scheduling order. The Court would not take judicial notice of the amicus briefs because, as Plaintiffs object, the request is an implicit attempt to extend Defendants' page limits without leave, or to file amicus briefs without leave. Calence, LLC v. Dimension Data Holdings, PLC, 222 Fed.Appx. 563, 566 (9th Cir.2007) (district court did not abuse its discretion in refusing to consider briefing that party attempted to incorporate by reference).⁸B. The Court Would Grant Plaintiffs' Request for an Injunction

1. Likelihood of Success on the Merits

Plaintiffs argue that Defendants' internet retransmission service infringes their exclusive right to make public transmissions of their copyrighted works.⁹ Defendants do not deny Plaintiffs' ownership of the copyrights or Defendants' transmission of the copyrighted works but argue that, due to the architecture of their systems, their transmissions are private, not public. Assuming that Defendants accurately describe their technology—which Plaintiffs dispute—Second Circuit law would support Defendants' position, because cases there have held that where a transmission of a work over the internet is made from a copy of a work made at the direction of and solely for use by single user, there is no public transmission. But, that Second Circuit law has not been adopted in the Ninth Circuit, and this Court would find that the Ninth Circuit's precedents do not support adopting the Second Circuit's position on the issue. Instead, the Court would find that Defendants' transmissions are public performances, and therefore infringe Plaintiffs' exclusive right of public performance.

a. Defendants Infringe Plaintiffs' Exclusive Transmission Rights

The Transmit Clause of the Copyright Act, 17 U.S.C. § 106(4), vests in a copyright holder the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. § 101 defines a public performance to mean, inter alia, “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.” Defendants maintain that under Second Circuit law, they are not making public performances of Plaintiffs' copyrighted content.

In Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir.2008) (“Cablevision”), the Second Circuit considered the question of whether a system that made a unique copy of a television program requested by a user and then transmitted that program from the user-specific copy solely to that user violated the copyright holder's exclusive public performance right. The Second Circuit first parsed the statutory definition of public performance, and concluded that “[t]he 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.” Id. at 134. The Second Circuit then reasoned that unless the transmission itself is public, the transmitter has not infringed the public performance right. Id. at 134–40.

That is not the only possible reading of the statute. The definition section sets forth what constitutes a public performance of a copyrighted work, and says that transmitting a performance to the public is a public performance. It does not require a “performance” of a performance. The Second Circuit buttressed its definition with a “ cf.” to Buck v. Jewell–La Salle Realty Co., 283 U.S. 191, 196, 51 S.Ct. 410, 75 L.Ed. 971 (1931), which interpreted the 1909 Copyright Act's provision of an exclusive right to publicly perform a musical composition and held that “the reception of a radio broadcast and its translation into audible sound” is a performance. But Buck, like Cablevis...