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Fox v. Aereokiller - Tentative Ruling on Motion for Preliminary Injunction

Fox v. Aereokiller - Tentative Ruling on Motion for Preliminary Injunction

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Published by Devlin Hartline
Plaintiffs' motion for preliminary injunction is tentatively granted.
Plaintiffs' motion for preliminary injunction is tentatively granted.

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Categories:Business/Law
Published by: Devlin Hartline on Dec 21, 2012
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES-GENERAL
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CV
12-6921-GW(JCx)
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20,2012
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Fox Television Stations, Inc., eta/.
v.
BarryDrif/er Content Systems, PLC,
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Pres~nb.TheHonorable;'~·
GEORGE H. WU,
UNITED
STATES DISTRICT
JUDGE
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Javier GonzalezDeputy ClerkAttorneys Present for Plaintiffs:Julie A. ShepardRichard Lee StoneWil WilcoxCourt Reporter
I
RecorderTape No.Attorneys Present for Defendants:Ryan G. BakerJaime W. Marquart!
PROCEEDINGS:PLAINTIFFS' MOTION
FOR
PRELIMINARY INJUNCTION (filed11/08/12)
The Court's
Tentative Ruling is circulated and attached hereto. Court hears oral argument.
For
reasonsstated
on
the record, Plaintiffs' motion is
taken
under submission and continued to
December 27,2012
at
11:00 a.m.
Ajointdocument
regarding the bond amoimt issue is due
by
noon
on
December 26,
2012~
Court
to
issue ruling. . .Please note: hearing originally set for 9:30 a.m. has been changed to
11
:00 a.m..
20
Initials
ofPreparer
JG
~ , . . . . - - - - - - - - -
CV-90(06/04)
CIVIL MINUTES-GENERAL
Pagel
of.l
Case 2:12-cv-06921-GW-JC Document 69 Filed 12/20/12 Page 1 of 9 Page ID #:1616
 
Fox
Television Stations, Inc.
v.
Aereokiller, LLC,
Case No. CV-12-6921
NBCUniversal Media,
LLC
v.
Aereokiller, LLC,
Case No. CV -12-6950Tentative Ruling
on
Motion for Preliminary Injunction
I.
Introduction
Plaintiffs Fox Television Stations, Inc., Twentieth Century Fox Film Corp., and FoxBroadcasting Co., Inc. (in CV-12-6921), and Plaintiffs NBCUniversal Media LLC, UniversalNetwork Television LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC-TV)LLC, Telemundo Network Group LLC, WNJU-TV Broadcasting LLC, American BroadcastingCompanies, 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.
!d.
at 4.
3
Plaintiffs also license that programming fordistribution through cable and satellite television, and through services such as Hulu.com andApple's iTunes.
!d.
at
5.
Plaintiffs accuse Defendants
of
offering their copyrighted contentthrough internet and mobile device streaming.
!d.
at
5.
Defendants do not deny that theyretransmit Plaintiffs' copyrighted broadcast programming, but argue that their service is legalbecause it is technologically analogous to the service the Southern District
ofNew
York found tobe non-infringing in
Am. Broad
Cos.
v.
AEREO, Inc.,
No. 12 Civ. 1540 (AJN), 2012 U.S. DistLEXIS96309 (S.D.N.Y. July 11, 2012)
("Aereo").
4
Defendants contend that their systems are"better and more legally defensible than Aereo's," but that the systems are similar in allowingusers to use an individual mini digital antenna and DVR to watch or record a free televisionbroadcast." 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 thesame antenna and tuner technology employed by consumers for years."
Id.
5
1
Plaintiffs initially sued and moved for a preliminary injunction against BarryDriller Content Systems, Pic. andBarryDriller Inc. After discussing which entities existed and had involvement
in
the conduct at issue, the partiesstipulated to the filing
of
a Second Amended Complaint that names the current defendants only. Docket No. 51.
2
All references to docket numbers are to CV 12-6921.
3
Plaintiffs have presented evidence
of
their ownership
of
the copyrights in the broadcast material they accuseDefendants
of
infringing. Dec
.
of
Marsha Reed, Docket No. 41-11, Dec
.
of
Carly Seabrook, Docket No. 41-10,Decl.
of
Rebecca Borden, Docket No. 41-13. Defendants have not challenged Plaintiffs' ownership
of
thecopyrights.
4
An appeal was taken
in
Aereo
and the Second Circuit heard oral argument on November 30, 2012. Nos. 12-2807-cv and 12-2786-cv (filed July 16, 2012).
5
Plaintiffs' expert argues that there are a number
of
elements that are present in the Aereo system that Defendantshave not identified as part
oftheir
system. Decl.
ofNigel
Jones in Support
of
Plaintiffs' Reply ("Jones Decl."),Docket No. 52-2
at~
7 and Ex. D (article about the Aereo system). But the Court cannot discern which
of
he
Aereo-like
elements Jones identifies as missing from the Defendants' system were material to the determination in
Aereo
that the transmissions in question were private rather than public. As just one example, Plaintiffs' expertstates that the declaration submitted by Defendants'
Chief
Technology Officer does not mention a demodulator.Jones Decl., Docket No. 52-2 at 4. But neither does the
Aereo
decision, so the Court is left to wonder as toPlaintiffs' contention regarding the legal significance
of
the omission.
1
Case 2:12-cv-06921-GW-JC Document 69 Filed 12/20/12 Page 2 of 9 Page ID #:1617
 
II. Legal Standards
A.
Preliminary Injunctive
Relief
A plaintiff seeking a preliminary injunction must establish: (1) that it is likely to succeedon 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 iniunction is in the public interest.
Winter
v.
Natural Res.
Def
Council, Inc.,
555 U.S. 7, 20 (2008).
B. Geographical Reach
of
njunction Where Circuit Split Present
Courts should not issue nationwide injunctions where the injunction would not issueunder the law
of
another circuit.Principles
of
comity require that, once a sister circuit has spokento an issue, that pronouncement is the law
of
that geographicalarea. Courts in the Ninth Circuit should not grant relief that wouldcause substantial interference with the established judicial pronouncements
of
such sister circuits. To hold otherwise would create tensionbetween circuits and would encourage forum shopping.
United States
v.
AMC
Entm
't,
Inc.,
549 F.3d 760, 773 (9th Cir. 2008) (reversing grant
of
nationwide 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 rightgranted 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. Analysis
A.
The Court Would Grant
In
Part
and
Deny
In
Part Defendants' Request
for
Judicial
Defendants have moved to strike and objected to the Jones Decl. The Court would deny the motion tostrike and overrule the objections. The Court would find that the Jones Decl. fairly responds to the Defendants'arguments, and does not consist
of
material that should have been submitted earlier, and the evidentiary objectionsare not well-taken (although Jones's use
of
Aereo's patent applications is not helpful because the relevant question iswhether Defendants' service resembles what the
Aereo
decision described, not whether it resembles what Aereo putin its patent applications).
6
The Court will not apply the standard set forth in
Alliance
for
Wild Rockies
v.
Cottrell,
632 F.3d 1127, 1131-35(9th Cir. 2010), as it views that standard as being in conflict with both the Supreme Court's ruling in
Winter
and theNinth Circuit's own subsequent adoption
of
the
Winter
standard.
Am. Trucking Ass
n,
Inc.
v.
City
of
Los Angeles,
559 F.3d 1046, 1052 (9th Cir. 2009) ("To the extent that our cases have suggested a lesser standard [than thatannounced in
Winter],
they are no longer controlling, or even viable."). It is a commonplace observation that onethree-judge panel
of
the Ninth Circuit may not overrule an earlier three-judge panel in the absence
of
interveningcontrolling Supreme Court precedent,
see United States
v.
Mayer,
560 F.3d 948, 964 (9th Cir.),
cert. denied,
130S.Ct. 158 (2009), (though the Court might note that other district courts within the Circuit have followed
Alliance
for
Wild Rockies
without questioning its apparent conflict with earlier Circuit authority).
7
Plaintiffs characterize the issue
of
whether Defendants' service falls within the analysis
of
the
Aereo
decision as a"defense" and argues that Defendants bear the burden
of
establishing it. Mot., Docket No. 49 at 9,
3.
But
Aereo
found that "that Aereo's service is likely lawful," not that Aereo had succeeded in proving a "defense." 2012 U.S.Dist. LEXIS 96309 at *89 (emphasis added). Plaintiff bears the burden
of
proving copyright infringement.
A&M
Records
at 1013. "[T]he burdens at the preliminary injunction stage track the burdens at trial."
Perfect
10,
Inc.
v.
Amazon. com, Inc.,
508 F.3d 1146, 1158 (9th Cir. 2007).
Perfect 10
involved the affirmative defense
of
fair use, buteven where a plaintiff bears the burden
of
proof, once the plaintiff has established its prima facie case, the burdenshifts to the defendant to rebut it.
Harper
&
Row
Publishers, Inc.
v.
Nation Enterprises,
471 U.S. 539, 541 (1985)(holding that once plaintiff establishes a prima facie damages nexus for copyright infringement, the burden shifts tothe defendant).
2
Case 2:12-cv-06921-GW-JC Document 69 Filed 12/20/12 Page 3 of 9 Page ID #:1618

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