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Fox v. Dish - Reply Brief of Plaintiffs-Appellants

Fox v. Dish - Reply Brief of Plaintiffs-Appellants

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No.

13-56818
IN THE
UNITED STATES COURT OF APPEALS
FOR THE
NINTH CffiCUIT
FOX BROADCASTING COMPANY, TWENTIETH CENTURY FOX
FILM CORP., AND FOX TELEVISION HOLDINGS, N C   ~
Plaintiffs-Appellants,
v.
DISH NETWORK L.L.C., DISH NETWORK CORP., AND ECHOST AR
TECHNOLOGIES, L.L.C.
Defendants-Appellees.
On Appeal from the United States District Court
for the Central District of California
Case No. 12-cv-04529
District Judge Dolly M. Gee
REPLY BRIEF OF PLAINTIFFS-APPELLANTS
PUBLIC REDACTED VERSION
Richard L. Stone
Andrew J. Thomas
David R. Singer
Amy M. Galfegos
JENNER & BLOCK LLP
633 West 5th St., Suite 3600
Los Angeles, CA 90071
Paul M. Smith
JENNER & BLOCK LLP
1099 New York Avenue, NW,
Suite 900
Washington, DC 20001
Attorneys for Plaintiffs-Appellants
Fox Broadcasting Company, Twentieth Century Fox Film Corp.,
and Fox Television Holdings, Inc.
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TABLE OF CONTENTS
I. INTRODUCTION ..................................................................................... 1
II. THE DISTRICT COURT COMMITTED LEGAL
ERROR WHEN IT HELD THAT THE EXISTENCE OF
A LICENSING MARKET PRECLUDED INJUNCTIVE
RELIEF ... ................... ........................ ....................................................... 4
III. THE DISTRICT COURT COMMITTED LEGAL
ERROR BY FAILING TO RECOGNIZE THAT FOX' S
LOSS OF CONTROL OVER ITS COPYRIGHTED
WORKS WAS IRREPARABLE .... ..... ...... ............................................... 8
IV. THE DISTRICT COURT'S FACTUAL FINDINGS
AND OTHER CONCLUSIONS WERE ILLOGICAL,
IMPLAUSIBLE, AND UNSUPPORTED ......... ... ..... ... ........ ... ........ ...... 11
A. The District Court's Finding OfNo Harm To
Advertising Was Illogical And Unsupported ............................... 11
B. The District Court Rejected Fox's Evidence Of
Harm To Distribution Relationships Based On A
Misquote .............................. ............ ............................... .............. 14
C. Slingboxes Are Not Relevant To Irreparable Harm ..................... 16
D. The District Court's Strained Attempts To
Distinguish The Multiple On-Point Cases Resulted
In Further Errors ....... ....................... ............................................. 17
V. DISH IS INFRINGING FOX' S COPYRIGHTS .................................... 21
A. Dish Anywhere Is An Unlawful Internet Streaming
Service And Does Not Meet Cablevision' s
Controversial "Unique Copy" Exception .. .. ............... .................. 21
B. Dish - Not Its Subscribers - Transmits Fox' s
Programs Over The Internet ............ ............................................. 24
VI. DISH IS BREACHING ITS LICENSE AGREEMENT .................... ..... 28
11
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A. Dish Anywhere Is A Breach ..... ........... ............................. ............ 28
B. Dish's Inadmissible Parol Evidence Confirms The
Parties Intended To Prohibit Sling ............................................... 30
C. Hopper Transfers Is Also A Breach ................................ .............. 31
CONCLUSION ..... ................... ............................................................................ 32
l11
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TABLE OF AUTHORITIES
Page(s)
CASES
Active Video Networks Inc. v. Verizon Communications, Inc.,
694 F.3d 1312 (Fed. Cir. 2012) ................................................... ............ ............. 8
Am. Broad. Cos., Inc. v. Aereo, Inc.,
874 F. Supp. 2d 373 (S.D.N.Y. 2012) ....... ......... .......................... ............ .. ........ 20
Am. Broad. Cos. v. Aereo, Inc.,
No. 13-461 (U.S. Dec. 12, 2013), 2013 WL 6729880 .................. ... ........ .......... 24
Apple Inc. v. Samsung Elecs. Co. , Ltd,
735 F.3d 1352 (Fed. Cir. 2013) ......................... .................. ............. ................... . 4
Ashwood Capital, Inc. v. OTG Mgmt., Inc. ,
99 A.D.3d 1 (N.Y. App. Div. 2012) ............................................................. 29, 31
Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691 (1984) ............................................ ....................................... ........... 7
Cartoon Network LP v. CSC Holdings, Inc.,
536 F.3d 121 (2d Cir. 2008) ......................................................................... 22, 26
Columbia Pictures Indus. , Inc. v. Prof'! Real Estate Investors, Inc.,
866 F.2d 278 (9th Cir. 1989) .............................................................................. 23
Community Television of Utah LLC v. Aereo, Inc.,
No. 2:13CV910DAK, ---F. Supp. 2d ---, 2014 WL 642828 (D. Utah
Feb. 19, 2014) .......................................................................... ........... ......... passim
eBay Inc. v. MercExchange, LLC,
547 U.S. 388 (2006) ..................................................................................... passim
EM! April Music, Inc. v. Garland Enterprises, LLC,
No. DKC 11-3352,2012 WL 1986529 (D. Md. June 1, 2012) ............................ 7
Fox Television Stations, Inc. v. BarryDriller Content Sys. PLC,
915 F. Supp. 2d 1138 (C.D. Cal. 2012) ....................................................... passim
IV
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Fox Television Stations, Inc. v. FilmOn X, LLC,
No. 13-758,--- F. Supp. 2d ---,2013 WL 4763414 (D.D.C. Sept. 5,
2013) .............................................. ........... ...................................... .. .. 5, 16, 22, 23
Guardian Life Ins. Co. v. Schaefer,
70 N.Y.2d 888 (1987) ................. ........... ............ ... ....................... ... .................... 31
Jinro Am. Inc. v. Secure Investments, Inc.,
266 F.3d 993 (9th Cir. 2001) ............................................................... ............... 30
Kemelhor v. Penthouse lnt'l,
689 F. Supp. 205 (S.D.N.Y. 1988) ... ............... .......................................... ......... 30
L.A. News Serv. v. Tullo,
973 F.2d 791 (9th Cir. 1992) .............................................. ... ........... ........ ... ... 3, 28
MR. v. Dreyfus,
697 F.3d 706 (9th Cir. 2012) ........................................................................ 11, 12
MDY Indus., LLC v. Blizzard Ent., Inc.,
629 F.3d 928 (9th Cir. 2011) .............................................................................. 28
MercExchange v. eBay, Inc.,
500 F. Supp. 2d 556 (E.D. Va. 2007) ............................................... .................... 8
Namad v. Salomon, Inc.,
74 N.Y.2d 751 (1989) ......................... ............... ................................................. 30
On Command Video Corp. v. Columbia Pictures Indus. ,
777 F. Supp. 787 (N.D. Cal. 1991) ..................................................................... 26
Perfect I 0, Inc. v. Amazon. com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ............................................................................ 27
Pfizer Inc. v. Teva Pharmaceuticals USA, Inc.,
429 F.3d 1364 (Fed. Cir. 2005) .............. ........... ............... ....................... ........... 17
Polymer Techs Inc. v. Bridewell,
103 F.3d. 970 (Fed. Cir. 1996) ............... ........... ...................................... ............. 8
Presidio Components, Inc. v. Am. Tech. Ceramics Corp.,
702 F.3d 1351 (Fed. Cir. 2012) ........................................... ............. ....... ........... .. 9
v
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R1AA v. Diamond Multimedia Sys., Inc.,
180 F.3d 1072 (9th Cir. 1999) ...................................................................... 26, 27
Salinger v. Colting,
607 F.3d 68 (2d Cir. 2010) ................... ..................................................... ........... 9
Silverstein v. Penguin Putnam, Inc.,
368 F.3d 77 (2d Cir. 2004) ............................ .......................... ............................. 7
Sony Corp. of Am. v. Universal Studios, Inc,
464 U.S. 417 (1984) ... ......... ............................ ......... ............ ........... .. ............. . 3, 26
Trustees of S. Cal. IBEW-NECA Pension Trust Fund v. Flores,
519 F.3d 1045 (9th Cir. 2008) .... ............ ... ..... ... ... ....................... ... .. .................. 30
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 (1975) ................................................................. ............................. 7
Warner Bros. Ent't Inc. v. WTV Sys., Inc.,
824 F. Supp. 2d 1003 (C.D. Cal. 2011) ....................................................... passim
Wisdom Import Sales Co. v. Labatt Brewing Co.,
339 F.3d 101 (2d Cir. 2003) ............... ................................................................ 28
WPIXv. ivi, Inc.,
691 F.3d 275 (2d Cir. 2012) ........................................................................ passim
WP!Xv. ivi, Inc.,
765 F. Supp. 2d 594 (S.D.N.Y. 2011) ................................................ 5, 16, 17, 20
STATUTES
17 U.S.C. § 101 .................................................................................................. 21, 25
17 U.S.C. § 106 ..................................................... ......... ............... ............ ........... .... 25
OTHER AUTHORITIES
2 Paul Goldstein, Goldstein on Copyright § 7. 7 .2, at 7: 168 (3d ed.
Supp. 2013-1) .. ............................................................................................... .... 23
H.R. Rep. No. 94-1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 ........ .......... 27
Vl
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Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor
(Cable) Vision, THE MEDIA INST. (April23, 2013) ............................................. 23
Jeffrey Malkan, The Public Performance Problem in Cartoon Network
LP v. CSC Holdings, Inc. , 89 OR. L. REv. 505,532 (2010) ............................... 23
vn
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I. Introduction
Everybody agrees that a copyright owner has the exclusive right to
control how, when, where, and by whom its creative works are exploited.
Otherwise, no sane person would spend hundreds of millions of dollars
producing high-quality television programs as Fox does here. The
cornerstone of Fox's business is its extensive, carefully-controlled
licensing of its content. Allowing unlicensed companies to stream
copyrighted programs over the Internet without authorization emboldens
others to follow suit, undermines the creation and distribution of
programming, and ultimately "threaten[ s] to destabilize the entire
industry." WPIX v. ivi, Inc., 691 F.3d 275, 286 (2d Cir. 2012) ("ivi IF').
An unbroken line of cases have enjoined unauthorized streaming
services for exactly this reason. Yet the district court brushed them all
aside and ruled that as long as Dish pays damages later, it may continue
streaming Fox's live programming over the Internet pending trial - even
though this is not just unauthorized but prohibited by Dish's contract with
Fox. The district court's rationale was that because there is a market for
streaming licenses, any harm to Fox is necessarily quantifiable and equal to
the value of a streaming license. This violates eBay, which prohibits courts
from categorically denying injunctive relief to copyright owners because
1
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they have licensed their works. eBay Inc. v. MercExchange, LLC, 547 U.S.
388, 393 (2006). This legal error standing alone warrants reversal.
Moreover, the district court's treatment of the licensing issue 1s
exactly backwards. The fact that Fox painstakingly carves up its copyright
licenses by territory, time window, and distribution platform (e.g., live, on-
demand, television, Internet, etc.) is the best evidence of how Fox controls
its intellectual property. By refusing to enforce Fox's property rights, the
district court has imposed a compulsory license no different than forcing a
landowner to allow trespassers to travel across her property as long as they
pay a toll set by the court. That can't be right.
Dish spends a lot of pages pretending the issue here is whether
consumers can legally use standalone Slingboxes. This is why Dish uses
the term "Sling" in its brief to refer to Dish Anywhere, the actual subject of
this lawsuit. This rhe1torical sleight of hand should not confuse the Court.
Dish Anywhere is a service, launched in January 2103, that allows Dish's
14 million subscribers to pay an additional monthly fee so they can watch
real-time television on Dish's "Dish Anywhere" website or mobile
application. ER 153, 1546, 1548, 1719. Referring to this servtce
generically as "Sling" or a "place-shifting feature" does not change this
fact. A Sling box, by contrast, is a standalone piece of equipment, invented
2
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in 2005 and owned by less than one-half of one percent of the 289 million
Americans with televisions, that does not require an ongoing monthly
subscription with Dish or any other service provider.
Dish plays fast and loose with its language because it knows it has
no defense if the Court focuses, as it must, on the Dish Anywhere service
that is actually at issue. Hence, Dish peppers its brief with the absurd
accusation that Fox waited "eight years" to sue "Sling." RB 3, 31-32.
Dish Anywhere did not exist eight years ago; it launched in January 2013,
amidst a massive marketing campaign, and Fox amended its complaint and
sought an injunction two months later.
Whether Dish uses "Sling technology" or any other type of
technology to distribute Fox's signal is beside the point. Technology is just
a tool, and the same technology can be used in ways that infringe and ways
that don't. For example, a consumer can use a VCR to record a movie to
watch later - but a business that uses VCRs to make thousands of copies of
movies to sell is not going to get very far with a defense that "VCR
technology" was declared "legal" in Sony Corp. of Am. v. Universal
Studios, Inc., 464 U.S. 417 (1984). E.g., L.A. News Serv. v. Tullo, 973 F.2d
791, 797 (9th Cir. 1992). On the merits this is not a close case. The
district court should have preliminarily enjoined Dish.
3
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II. The District Court Committed Legal Error When It Held That
The Existence Of A Licensing Market Precluded Injunctive
Relief.
eBay holds that it is reversible error for a court to find no irreparable
harm simply because the plaintiff licensed its intellectual property to third
parties. 547 U.S. at 393. Because the district court did exactly this, it
should be reversed on this ground alone. Apple Inc. v. Samsung Elecs.
Co., Ltd, 735 F.3d 1352, 1370 (Fed. Cir. 2013) (reversing denial of
preliminary injunction because court's cursory analysis "hints at a
categorical rule that Apple's willingness to license its patents precludes the
issuance of an injunction").
Dish did not dispute that Fox's licensing business is a carefully
managed ecosystem of arrangements with distributors across various
platfonns, all of which contain numerous conditions that allow Fox to
maxuruze revenue streams and ensure consumers have a variety of
affordable choices. ER 227-231. Fox's entire business depends on the
ability to selectively parcel out its rights, and to control when, where, to
whom, and for how much it will license its content. ER 227.
When a rogue distributor or pirate streams broadcast programming
over the Internet without permission, it upends this model. The Second
Circuit described these banns in no uncertain tenns:
4
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The strength of plaintiffs' negotiating platform and business
model would decline. The quantity and quality of efforts put
into creating television programming, retransmission and
advertising revenues, distribution models and schedules- all
would be adversely affected. These harms would extend to
other copyright holders of television programming. Continued
live retransmissions of copyrighted television programming
over the Internet without consent would thus threaten to
destabilize the entire industry.
ivi II, 691 F.3d at 286.
The district court shrugged off these concerns and concluded that
because a licensing market exists for live streaming of television content,
any harm from Dish's infringement was necessarily calculable. ER 307.
This reasoning was expressly rejected by the Supreme Court in eBay. It is
also indefensible based on the unrebutted facts and near-universal judicial
recognition that in the unique context of broadcast television, the harms
caused by unauthorized streaming services are unquantifiable and
irreparable because they "affect the operation and stability of the entire
industry." See ivi II, 691 F.3d at 286; see also Fox Television Stations, Inc.
v .. BarryDriller Content Sys. PLC, 915 F. Supp. 2d 1138, 1147 (C.D. Cal.
2012) (preliminarily enjoining unauthorized streaming service); WPIX v.
ivi, Inc., 765 F. Supp. 2d 594, 617-620 (S.D.N.Y. 2011) ("ivi F') (same);
Community Television of Utah LLC v. Aereo, Inc., --- F. Supp. 2d ---, 2014
WL 642828, at *8 (D. Utah Feb. 19, 2014) (same); Fox Television Stations,
5
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Inc. v. FilmOn X, LLC, ---F. Supp. 2d ---, 2013 WL 4763414, at *16, *17
(D.D.C. Sept. 5, 2013) (same); see also Warner Bros. Ent 't Inc. v. WTV
Sys., Inc., 824 F. Supp. 2d 1003, 1012-14 (C.D. Cal. 2011).
Dish contends the district court did not base its decision on the rule
disapproved by eBay, but instead "carefully evaluated the record" to
conclude that any harm to Fox was quantifiable. RB 14. The opinion does
not bear this out. The district court merely gestured toward a few examples
of licensed streaming services, recognized that they involved different
parties and different content, and then concluded anyway that "their
presence on the market suggests that the value of the 2013 Services - and
any alleged damage they cause between now and trial - can be calculated
in a sum certain for damages purposes." ER 307. This is precisely what
eBay dictates courts cannot do. The district court's decision clashes with
Supreme Court precedent and creates a split with the Second Circuit. It
must be reversed for these reasons alone.
The opinion below also creates a perverse incentive for copyright
owners to jealously guard their works from the public - lest licensing a
work one time be deemed an irreversible waiver of the right to prevent
anyone else from exploiting it. Judicial rules that punish licensing
undermine the animating purpose of copyright protection, which is to
6
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"promot[ e] broad public availability of literature, mustc, and the other
arts," Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 710 (1984), by
"rewarding the creators of copyrighted works," id., thereby providing an
"incentive" designed "to stimulate artistic creativity for the general public
good." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
Moreover, by denying a preliminary injunction, the district court
effectively imposed a compulsory license that cuts the heart out of Fox's
rights as a copyright owner. It effectively granted Dish the right - at least
through trial- to exploit Fox's programming in the exact manner that its
contract with Fox forbids in exchange for some royalty payment to be
determined later. Imposing a compulsory license "is acting in derogation
of the exclusive property rights granted by the Copyright Act to copyright
holders." ivi II, 691 F.3d at 281; accord Silverstein v. Penguin Putnam,
Inc. , 368 F.3d 77, 84 (2d Cir. 2004); EM! April Music, Inc. v. Garland
Enterprises, LLC, 2012 WL 1986529, at *5 (D. Md. June 1, 2012). For
this reason, compulsory licenses are typically narrow and only granted by
Congress. The district court was not empowered to grant Dish a right to
exploit Fox's works that Fox itself had chosen not to grant.
Dish tries to defend the district court's ruling by citing two cases
that supposedly hold the existence of a licensing market proves that harm
7
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from infringement can be quantified. Dish's cases actually underscore
why this rule should not have been applied here. Active Video Networks
and MercExchange both involved patent owners who offered to license
their patents to the defendant numerous times before filing suit. See
ActiveVideo Networks Inc. v. Verizon Communications, Inc. , 694 F.3d
1312, 1339-40 (Fed. Cir. 2012); MercExchange v. eBay, Inc., 500 F. Supp.
2d 556, 569-73 (E.D. Va. 2007). L When a patent owner was willing to
allow the infringer to exploit the patented invention in exchange for a
license fee, it makes sense to say that the harm from infringement equals
the amount of the unpaid license fee. Here, by contrast, Fox carefully
limits the rights it grants to licensees, and it was not willing to license
Internet streaming rights to Dish. Because the facts here are the exact
opposite of the facts in the cases Dish cites, these cases cannot justify
affirming the district court's ruling.
III. The District Court Committed Legal Error By Failing To
Recognize That Fox's Lo:ss Of Control Over Its Copyrighted
Works Was Irreparable.
Ownership of a copyright is a property right that includes the "right
to exclude." Salinger v. Colting, 607 F.3d 68, 78, 82 (2d Cir. 2010).
1
The third case Dish cites, Polymer Techs Inc. v. Bridewell, 103 F.3d. 970
(Fed. Cir. 1996), is not good law because it predates eBay and, in any
event, the Federal Circuit in that case vacated the district court's denial of
an injunction. !d. at 978.
8
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Copyright owners like Fox "have the exclusive right to decide when,
where, to whom, and for how much they will authorize transmission of
their Copyrighted Works to the public." WTV, 824 F. Supp. 2d at 1012
(citations omitted). Thus, as Chief Justice Roberts recognized in eBay, the
long tradition of granting injunctions against the infringement of
intellectual property is "not surprising, given the difficulty of protecting a
right to exclude through monetary remedies that allow an infringer to use
an invention against the patentee's wishes." 547 U.S. at 395 (Roberts, C.J.,
concurring).
The district court erred by failing to recognize that the copyrighted
works Dish has misappropriated are Fox's property, and that losing control
of its property harms Fox in a way that is unquantifiable and irreparable.
When intellectual property is viewed in proper context - as property - the
problem with the district court's approach becomes apparent. If a
trespasser squats on a homeowner's property, "the axiomatic remedy for
trespass on property rights is removal of the trespasser." Presidio
Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 1351, 1362 (Fed.
Cir. 2012). What the district court did here was akin to saying the
trespasser could stay - as long as he pays rent.
9
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The district court thought there was no irreparable loss of control
here because Fox and Dish have a contractual relationship, and Dish
Anywhere is only available to Dish subscribers. ER 309. But the loss of
control concept is not about controlling the number of people to whom
Dish streams Fox programs, it's about controlling whether Dish streams
any Fox programs at all. That Fox and Dish have a license agreement that
prohibits Dish from distributing Fox's live programming over the Internet,
and Dish is doing it anyway, is the best evidence of Fox's loss of control.
Dish's claim that the current agreement proves "these parties knew
exactly how to quantify the value of rights in Fox's content," RB 30,
misses the point entirely. The issue isn't the value of the rights that Fox
chose to grant Dish - it is the intangible value of Fox's right to control its
content by withholding other rights from Dish, and the unquantifiable cost
of soured relationships and lost opporrunities caused by Dish's
misappropriation of that content. E.g., ivi II, 691 F.3d at 285-86.
Dish' s main argument is that any consideration of the intangible
harm inherent in the loss of a copyright owner's control over its works
amounts to a presumption in the copyright owner's favor. RB 25. This is
wrong, since in many cases the plaintiff may not value the right of control,
for example, if he willingly licenses rights to all comers. See eBay, 547
10
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U.S. at 396-97 (Kennedy, J., concurring) (identifying patent owners who
do not practice their patents but instead use them mainly to collect license
fees as an example of where any harm from infringement would be
compensable in damages). These are not the facts here. If a preliminary
injunction cannot issue on the facts of this case then one cannot issue in
any case where a copyright owner has previously licensed its works to
others. The opinion below must be reversed.
IV. The District Court's Factual Findings And Other Conclusions
Were Illogical, Implausible, And Unsupported.
Dish labors to mischaracterize the district court's opinion as a ruling
built on a careful review of facts, then gloats that this Court's review must
be "limited and deferential." RB 18. In reality, the district court's key
factual conclusions are illogical, unsupported, and, in many cases, flatly
contradicted by the only record evidence on point. This decision was not a
valid exercise of the district court's discretion and cannot be affirmed.
MR. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
A. The District Court's Finding Of No Harm To Advertising
Was Illogical And Unsupported.
As Fox pointed out in its Opening Brief, the district court erred in
finding that Dish's disruption of Fox's ability to measure its advertising
viewership is calculable because entities besides Nielsen "adequately
11
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capture trends in television viewing and, by extension, advertising value."
OB 50-54. There was no evidence that any of these entities are currently
measuring viewership on Dish Anywhere and Hopper Transfers, which
means there will be no way to later calculate how much viewership was
diverted from platforms measured by Nielsen. !d. at 50-51.
Dish responds glibly that as long as "someone, somewhere, is
capable of measuring" Dish Anywhere and Hopper Transfers viewership,
the loss is not irreparable. RB 42. No. To measure viewership of live
programs airing now, someone has to be actually measuring that
viewership now, as they air. That is not happening. Dish does not even
argue it is happening. It was clear error for the district court to hold that
viewership of live Fox programs on Dish Anywhere and of copies on
Hopper Transfers pending trial can be quantified, when it is undisputable
that nobody is measuring it pending trial.
The district court's reliance on the representation of Dish's expert
(Rapp) that "Nielsen has announced it will measure viewership delivered
through online connections beginning in fall 2013," ER 310, was also
clearly erroneous and contradicted by the evidence. The New York Times
article Rapp cited and the Court relied on clearly states that in 2013 Nielsen
would begin measuring only viewership on Internet-connected televisions -
12
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i.e., "those households who are receiving broadband Internet and putting it
onto a television set. "
2
The article clearly states that Nielsen will not be
measuring viewing on iPads, computers, and mobile devices, meaning that
most viewers watching Fox's live programming on Dish Anywhere will not
be counted.
Dish responds blithely that its expert was entitled to rely on
"hearsay," and scolds Fox for "flyspeck[ing]." RB 43. Hearsay is not the
issue. The issue is that the article Rapp quoted (and on which the district
court relied) says the opposite of what he claimed. Pointing this out is not
"flyspecking." Digging itself in deeper, Dish points to an announcement
on Nielsen's website and crows that "Rapp was right." RB 43. But the
announcement Dish cites actually says Nielsen plans to measure television
viewing on digital devices beginning in fall 2014, which confirms that
Nielsen did not start measuring this viewership in 2013, is not doing so
now, and will not do so until fall2014 at the earliest.
3
Rapp was wrong.
2
http:l/mediadecoder.blogs.nytimes.com/2013/02/21/tvs-connected-to-the-
intemet-to-be-counted-by-
nielsen/? _php=true& _ type=blogs& _php=true& _ type=blogs& _ r= 1.
3
http://www.nielsen.com/us/enlnewswire/2013/any-way-you-watch-it-
nielsen-to-incorporate-mobile-viewing.html.
13
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B. The District Court Rejected Fox's Evidence Of Harm To
Distribution Relationships Based On A Misquote.
According to Dish, the district court "carefully evaluated the record"
to conclude that "Fox presents no compelling evidence that other MVPDs
will demand rights that are yet to be established rather than wait to see the
result of this litigation before altering their contracts with Fox." ER 307.
But this conclusion was derived entirely from misquoting Ms. Brennan's
declaration in a manner that falsely attributes to Fox a position exactly the
opposite of what it had argued to the court. Specifically, the district court
stated, citing the Brennan declaration at paragraph 22, that "Fox contends
that Dish's competitor MVPDs will only 'demand the same rights or other
concessions' ifthe 2013 Services are found to be unlawful." !d.
Ms. Brennan's declaration does not say that Dish's competitors will
only demand rights or concessions if the 20 13 services are found to be
unlawful. See ER 235. That does not even make sense. If Dish's services
are found to be unlawful at the conclusion of this litigation, then Dish will
have to stop offering them. Dish's competitors will, logically, not need to
demand concessions at that point since an even playing field will have been
restored. This is important because the district court misread what Ms.
Brennan said in a way that made it seem she bad conceded any harms
would only occur after trial - when in fact she said the opposite. !d.
14
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Dish ignores this critical error and contends the district court just
found Dish's paid expert more credible. But Rapp agreed that Fox's
negotiations with its cable and satellite (MVPD) partners would be
negatively impacted by Dish's streaming service. And he conceded that
"any Fox retransmission consent agreements that come up for renewal
prior to trial will result in negotiations that account for prevailing market
considerations" and will "embody consideration for any competitive
disadvantage". ER 874-75. If MVPDs face competition from Dish's
unlicensed streaming service, that is a "prevailing market consideration."
ER 875. If an MVPD demands rights or other concessions to mitigate the
risk of losing customers to Dish, that is "consideration for any competitive
disadvantage." !d.
To distract from its own admissions, Dish tries to amuse the Court
with an imaginary, tongue-in-cheek negotiation between Fox and an
MVPD. RB 36-37. Dish's hypothetical just illustrates that Dish's services
will impact Fox's negotiations and present Fox with the choice of either
accepting less favorable contract terms (often nonmonetary) or losing the
goodwill of its business partners. Negatively impacting negotiation
dynamics is irreparable harm, as multiple courts have held on identical
15
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facts. E.g., ivi II, 691 F.3d at 285; BarryDriller, 915 F. Supp. 2d at 1147;
FilmOnX, 2013 WL 4763414 at *15-16.
Finally, Dish asserts that at oral argument in April 2013 Fox was
"unable to point to any actual harm that had materialized in the 11 months
since it filed this suit," as if this means something. RB 26. First, Dish
Anywhere had not yet launched when Fox first sued in May 2012. Second,
Fox's distributor negotiations -
have been palpably and negatively impacted smce the preliminary
injunction was denied, due to concerns Dish's streaming service puts them
at a competitive disadvantage.
Third, since these harms are by their nature intangible and
incalculable, Fox obviously cannot submit itemized lists of actual
manifested harms. As the ivi court recognized, a plaintiffs inability to
catalog actual harm at a preliminary injunction hearing does not disprove
the harm- it serves to underscore the incalculable and irreparable nature of
the harm. ivi I , 765 F. Supp. 2d at 620.
C. Slingboxes Are Not Relevant To Irreparable Harm.
Dish pounces on the district court' s irrelevant statement near the end
of its opinion that Fox did not demonstrate irreparable harm from earlier
"Sling-enabled devices." ER 311. But an analysis of irreparable harm
16
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focuses on harm caused by the alleged infringement - here, Dish's
unauthorized streaming service - and not harms caused by other people or
products. See ivi I, 765 F. Supp. 2d at 619 (rejecting argument that
S1ingboxes were relevant to whether unauthorized streaming services
caused irreparable harm).
Moreover, Dish admitted that people bought a
Sling-enabled device over the past 10 years, ER 927, and there is no way to
know how many of those are currently in use. By contrast, Dish (which
has 14 million subscribers) deployed over 2 million Hoppers in just a few
months and kicked off a multimillion dollar media blitz to promote its new
streaming service, including giving away iPads to new subscribers. ER
1534-40. A defendant cannot escape an injunction by pointing out that
others are also infringing - especially when they are doing so on a much
smaller scale. E.g., Pfizer Inc. v. Teva Pharmaceuticals USA, Inc. , 429
F.3d 1364, 1381 (Fed. Cir. 2005) ("Picking off one infringer at a time is not
inconsistent with being irreparably harmed .... Neither is first targeting
infringers whose sales dwarf the sales of other infringers.").
D. The District Court's Strained Attempts To Distinguish The
Multiple On-Point Cases Resulted In Further Errors.
An unbroken line of cases holds that the unauthorized streaming of
live broadcast programming over the Internet irreparably harms the
17
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broadcasters. None of these cases holds that the existence of a licensed
streaming market meant the plaintiffs' harms were compensable in
damages. The district court's attempts to distinguish these cases were
demonstrably wrong as a factual matter, and Dish's efforts to defend the
district court's reasoning fare no better.
First, Dish endorses the district court's statement that irreparable
harm was virtually undisputed in WTVand BarryDriller. ER 311, RB 34.
This is not true at all. The documents cited by the district court for this
proposition show on their face that irreparable harm was hotly contested in
both cases, and the defendant in BarryDriller appealed the district court's
irreparable harm finding.
Moreover, Dish's lawyers in this case are fully aware that the district
court's statement was not true, since they represented WTV in the earlier
litigation. See WTV's Opposition to Motion Picture Studio's Motion for
Preliminary Injunction, 2011 WL 4401800 (June 17, 2011) (showing the
Durie Tangri firm as counsel for WTV). Relying on evidence obtained
during discovery, they argued the same thing they argue here - namely,
that because the plaintiffs licensed digital downloads of their works to
18
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iTunes, any harm could be calculated using those agreements as a
benchmark (id. at 14) - an argument the WTV court rejected.
4
Second, the district court stated WTV, BarryDriller, and ivi II were
distinguishable because the plaintiffs there did not have existing license
agreements with the defendants. ER 307. But that is a distinction without
a meaningfuE difference, because Dish's license agreement prohibits it
from streaming Fox's programs over the Internet. Therefore, Dish is just
like the defendants in all the other cases: it is doing something it does not
have a license to do.
Third, the district court found WTV was distinguishable because
"their service was available to anyone with Internet access who could pay
the service's low fee, unlike here, where only paying Dish subscribers can
access the services." ER 309. But ivi was a subscription service available
only to paying subscribers. See ivi II, 691 F.3d at 277. And Aereo, another
subscription-based streaming service, has been found to cause irreparable
harm by two courts. See Community Television, 2014 WL 642828 at *1-2,
8; Am. Broad. Cos., Inc. v. Aereo, Inc., 874 F. Supp. 2d 373, 386, 396-99
4
Just this month yet another district court found irreparable harm based on
the same facts presented here where, again, the defendant was represented
by Dish's lawyers, who vigorously disputed irreparable harm. Community
Television, 2014 WL 642848 at *8.
19
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(S.D.N.Y. 2012) ("Aereo f'). Moreover, virtually anyone in the United
States is capable of subscribing to Dish.
To the extent Dish offers up other grounds for distinguishing these
decisions, its distinctions likewise are illogical and contrary to law. For
example, Dish contends that "[i]n those cases, the court could not say, as
the district court did here, that the challenged features" - by "challenged
features" Dish seems to be referring to Slingboxes, which nobody is
challenging - have "been available on the market since 2005." RB 34.
Actually, in almost all of these other cases, the defendant argued that
because consumers use Slingboxes to watch television over the Internet,
there is no harm if the defendant operates a commercial service to
accomplish the same thing. And every other court has rejected this
argument as either wrong or irrelevant or both. See ivi I, 765 F. Supp. 2d at
619; BarryDriller, 915 F. Supp. 2d at 1145-46; Community Television,
2014 WL 642828 at *3, *5-*8; cf Aereo I, 874 F. Supp. 2d at 386, 396-99
(finding irreparable harm from Internet retransmission service despite
finding it to be the equivalent of a Slingbox).
Dish also defensively mocks Fox's evidence - accepted by all of the
other courts as credible and non-speculative - as "recycled" and
"practically begg[ing] for the back of the hand" because it describes the
20
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same harms as in the other cases. RB 27-28. Well yes, of course the harms
are the same. All of those other cases were copyright infringement
lawsuits against companies that were streaming Fox's signal over the
Internet without permission, which is exactly what Dish is doing here. It
makes no difference that these cases involved "different technologies." RB
34-35. The technology the defendant uses to stream the programming does
not impact irreparable harm. Likewise, it is not a distinction, as Dish
claims, that the defendants in those cases streamed the programming
"without paying the plaintiff a dime." RB 35. Dish isn't paying anything
for streaming rights either.
V. Dish Is Infringing Fox's Copyrights.
A. Dish Anywhere Is An Unlawful Internet Streaming Service
And Does Not Meet Cablevision's Controversial "Unique
Copy" Exception.
Fox has the exclusive right to publicly perform its works, which
means to "transmit or otherwise communicate a performance or display of
the work ... to the public, by means of any device or process," even if the
performance is received "in separate places . . . or at different times." 17
U.S.C. § 101 (emphasis added). Courts have consistently held that a
service that retransmits live broadcast television to its subscribers over the
Internet publicly performs the programs. See ivi     ~ 691 F.3d at 278;
21
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BarryDriller, 915 F. Supp. 2d at 1143-46; FilmOnX, 2013 WL 4763414 at
*12-15; Community Television, 2014 WL 642828 at *7-8.
Dish relies on a narrow exception from Cablevision which held that
the service provider's transmissions of copyrighted programs were private
"[b ]ecause each . . . transmission is made to a single subscriber using a
single unique copy produced by that subscriber." Cartoon Network LP v.
CSC Holdings, Inc., 536 F.3d 121, 139 (2d Cir. 2008) (emphasis added);
RB 52. That does not apply here because Dish admits that when its
subscribers watch live television over the Internet on Dish Anywhere, they
are not watching separate copies. ER 387.
Moreover, Cablevision's reading of the Copyright Act has been
repeatedly rejected by courts, condemned as wrong by scholars, and is now
under review by the Supreme Court in the Aereo case. Community
Television, 2014 WL 642828 at *6 (Cablevision "changed the wording of
the Transmit Clause from reading 'members of the public capable of
receiving the performance' to 'members of the public capable of receiving
the transmission"'); BarryDriller, 915 F. Supp. 2d at 1144 (same);
FilmOnX, 2013 WL 4763414 at *10-*14 (same); 2 Paul Goldstein,
Goldstein on Copyright § 7.7.2, at 7:168 (3d ed. Supp. 2013-1) (same);
Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor
22
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(Cable) Vision, THE MEDIA INST. (April 23, 20 13) (same)
5
; Jeffrey Malkan,
The Public Performance Problem in Cartoon Network LP v. CSC
Holdings, Inc. , 89 OR. L. REv. 505, 532 (2010) (same). The Columbia
Pictures case Dish cites involved totally different facts - a hotel renting
videodiscs to guests - and has since been distinguished from unauthorized
streaming services. BarryDriller, 915 F. Supp. 2d at 1146 (citing
Columbia Pictures Indus., Inc. v. Prof'/ Real Estate Investors, Inc., 866
F.2d 278, 282 (9th Cir. 1989)).
Neither Fox nor its counsel has ever admitted that Dish's Internet
streaming service is legal as Dish claims. RB 53-54. The hypothetical
question the Second Circuit asked Fox' s counsel at the November 2012
Aereo oral argument specifically dealt with the sale of a standalone
"Slingbox," not the subscription-based Dish Anywhere monthly service,
which did not exist at the time. RB 53. A simple cite check will also
confirm that Dish' s other attributions to Fox had nothing to do with Dish
Anywhere or even the underlying Sling technology. Reply Br. for Pet'rs,
Am. Broad. Cos. v. Aereo, Inc., No. 13-461 (U.S. Dec. 12, 2013), 2013 WL
6729880, at *4; En Bane Petition, 2013 WL 1623648, at *10 (April 15,
2013). In short, even if the "unique copies" exception identified by
5
www.mediainstitute.org/IPI/2013/042313.php.
23
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Cablevision were good law, it does not apply here. Dish offers a garden-
variety Internet streaming service just like the one found illegal in ivi. ivi
II, 691 F.3d at 277-78.
B. Dish - Not Its Subscribers - Transmits Fox's Programs
Over The Internet.
To escape liability for direct infringement, Dish says it is merely an
equipment provider and that its subscribers are the ones streaming Fox's
programs over the Internet to themselves. RB 47-49. Dish spews a
comically complex explanation of how the subscriber "commands" the box
to send a "second signal" over the Internet for viewing on Dish Anywhere.
See id. Yet Dish's user guides, manuals, and advertisements make clear
that the subscriber does nothing more than visit Dish's website and pick
which channel to watch, just like with regular TV or the now-enjoined
streaming services ivi and FilmOn. ER 153, 1546, 1548, 1719.
Dish (the service provider) admits that it does all of the work. It
sends the TV signals and copyrighted programs to the set top box (which it
leases to the subscriber), converts them to a new format, creates a secure
connection between the user's set top box and their remote computer or
device, and delivers the content to the consumer via the Internet so that it
can be viewed on the Dish Anywhere website or mobile app. RB 47.
24
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Nonetheless, Dish assures the Court this is an "easy case" because
"[ w ]hen a customer decides to use Sling, the customer is the one sending
the program." RB 51. That isn't the law. "Deciding" to watch a program
using a service designed, maintained, operated, and marketed by a service
provider who charges hefty subscription fees does not make the customer
the transmitter of the program. If it did, then the provision of the Copyright
Act that gives a copyright owner the exclusive right to transmit a
performance of its work to the public, 17 U.S. C. §§ 101, 106(4), would be
a dead letter. Video-on-demand would not require a license because
nothing offered on-demand is transmitted until the customer selects what to
watch. Anyone could stream copyrighted programs and movies to the
public over the Internet without authorization, since nothing streamed over
the Internet is transmitted until the viewer selects what to watch. Cable and
satellite providers would stop taking licenses because nobody receives
anything on TV unless they decide to turn it on. The rule that Dish urges
this Court to adopt is crazy.
Indeed, no court anywhere has ever held that selecting a program to
6
watch makes the viewer the transmitter. OB 58-60. Even Cablevision
6
This Court did not adopt this rule when it affirmed the district court's
decision not to preliminarily enjoin PrimeTime Anytime. RB 48. That
claim involved unauthorized copying, not a public performance.
25
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rejected the argument that the viewer who presses play to receive a
transmission from a remote DVR server to her television "does" the
transmitting. Cablevision, 536 F.3d at 134 ("[O]ur conclusion ... that the
customer, not Cablevision, 'does' the copying does not dictate a parallel
conclusion that the customer, and not Cablevision, ' performs' the
copyrighted work. The definitions that delineate the contours of the
reproduction and public performance rights vary in significant ways."); see
also On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp.
787, 789 (N.D. Cal. 1991) (service that transmitted movies to hotel rooms
was liable for infringement; that the customer "initiate[ s] the transmission"
is "immaterial" and does not make the customer the transmitter); WTV, 824
F. Supp. 2d at 1009-10 (same).
None of the cas,es cited by Dish are relevant. Sony deals only with
the reproduction right, not the performance right, and the question of who
was "doing" the copying was not addressed because the case did not
involve a direct infringement claim. 464 U.S. at 462-64. Diamond
Multimedia is not a copyright infringement case, and the language Dish
quotes is dicta in which the court indicated that copying a music file to
render it portable - what the court referred to as "space-shift[ing]"' - was
consistent with a statute designed to give consumers the right to copy music
26
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files. RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th
Cir. 1999). Perfect 10 held that providing an HTML link to an image of a
copyrighted photograph does not infringe the display right because in order
to infringe the display right the defendant must possess and display a fixed
copy of the photograph. Perfect 10, Inc. v. Amazon.com, Inc. , 508 F.3d
1146, 1161 (9th Cir. 2007). Perfect 10 had nothing to do with the
performance right or whether watching a program online makes the viewer
the transmitter.
Finally, Dish's argument that it is merely an equipment provider,
immune from public-performance liability, was expressly rejected when
Congress enacted the 197 6 Copyright Act to overrule cases that said the
same thing about community antenna services that made the same claim.
BarryDriller, 915 F. Supp. 2d at 1146 (summarizing legislative history and
how Congress recognized that a "commercial enterprise[]" cannot profit
from a service that exploits copyrighted material without paying a royalty)
(citing H.R. Rep. No. 94-1476, at 87-89 ( 1976), reprinted in 1976
U.S.C.C.A.N. 5659). Similarly, in Tullo, this Court distinguished between
a consumer's personal VCR use (arguably fair use) and a commercial
service - like Dish Anywhere - that uses equipment to profit from
protected works (direct infringement). 973 F.2d at 797.
27
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VI. Dish Is Breaching Its License Agreement.
Under New York law, which governs this contract, Dish's breaches
can be enjoined. See, e.g., Wisdom Import Sales Co. v. Labatt Brewing
Co., 339 F.3d 101, 107-09 (2d Cir. 2003). Injunctive relief is also available
because Dish's breach of contract constitutes copyright infringement. Dish
calls this "absurd" (RB 44-45), but in a recent case ignored by Dish, this
Court said so: "We refer to contractual terms that limit a license's scope as
'conditions,' the breach of which constitute copyright infringement." MD Y
Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 939 (9th Cir. 2011); id. at
941 (requiring only a "nexus between the condition and the licensor's
exclusive rights of copyright.").
A. Dish Anywhere Is A Breach.
Dish claims the ''No-Internet" provision only "prohibits Dish from
substituting tihe internet for its satellite system as a means of delivering
Fox's broadcasts to subscribers." RB 58. The provision says no such
thing. It just says no distribution over the Internet. ER 1802, 1831.
Dish also claims that the clause stating
" means that Dish
could distribute Fox's signal over the Internet with "Sling technology." RB
58. That phrase is simply a typical assurance that the agreed-upon contract
28
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restriction will not inadvertently curb any rights that fall outside the
restriction. Anyway, Dish has to
retransmit Fox's signal over the Internet usmg Sling or any other
technology. See ivi II, 691 F.3d at 283; BarryDriller, 915 F. Supp. 2d at
1143-46. Moreover, since the parties knew Sling technology existed but
djd not mention it, the contract cannot be read as containing such an
exemption. Ashwood Capital, Inc. v. OTG Mgmt. , Inc., 99 A.D.3d 1, 8
(N.Y. App. Div. 2012).
Even if Dish's subscribers were "doing" the transmitting - which
they aren' t, as explained above - Dish would still be in breach of the
contract provjsion barring it from authorizing its subscribers to retransmit
Fox's signal. ER 1800-01. Dish responds that it is not "authorizing" its
customers to send programs over the Internet. It is unclear what Dish
thinks "authorize" means: Dish Anywhere can only be accessed by
current, paying Dish subscribers (ER 309), and before using Dish
Anywhere, "a customer must be verified with a login and password[.]" ER
930. The djstrict court even found specifically that Sling users were
"authorized" by Dish. ER 309.
29
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B. Dish's Inadmissible Parol Evidence Confirms The Parties
Intended To Prohibit Sling.
Dish argues based on parol evidence that the '
Ill" clause in the No-Internet provision was really meant to allow Internet
streaming with Sling technology, even though the contract does not say
that. ER 10, 58. But " [p ]arol evidence is inadmissible if a contract is clear
on its face and sufficient alone to divine the intent of the parties." Namad
v .. Salomon, Inc., 74 N.Y.2d 751, 753 (1989); see also Trustees of S. Cal.
IBEW-NECA Pension Trust Fund v. Flores, 519 F.3d 1045, 1048 (9th Cir.
2008).
7
Nor can Dish manufacture an ambiguity by claiming that's how it
understood the contract. Kemelhor v. Penthouse Int'l, 689 F. Supp. 205,
212-13 (S.D.N.Y. 1988). Moreover, since Dish drafted the ambiguous
language (ER 425), it must be construed against Dish. Guardian Life Ins.
8
Co. v. Schaefer, 70 N.Y.2d 888, 890 (1987).
Either way, Dish's parol evidence destroys its own claim. The
written correspondence and draft agreements show that on October 28,
7
Parol evidence is governed by state contract law. See Jinro Am. Inc. v.
Secure Investments, Inc. 266 F.3d 993 999 Cir. 2001
8
The contract also
ER 1813, 1825. This bars any claim based on an alleged intent
that the parties failed to express in writing. Ashwood, 99 A.D.3d at 9.
30
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2010, Dish sought to include the following language in the contract: ,.
ER 346-47.
ER 347.
(id. ),
(id.). In the end, the final agreement did not contain Dish's requested
language. !d. This means the agreement cannot be "interpreted" to include
Dish's requested language. Ashwood, 99 A.D.3d at 8.
Finally, the parties' joint press release announcing their amended
contract is irrelevant. The actual "joint" statement says nothing about Dish
Anywhere or Dish's Sling-enabled set top box. The reference to Dish's
Sling technology appears in the endnote after the parties' joint statement
under the header "About DISH Network." ER 347. Dish's decision to
promote a Sling-enabled DVR does not change the fact that the contract
prohibits Dish from streaming the Fox Network over the Internet.
C. Hopper Transfers Is Also A Breach.
Dish' s claim it does not "authorize" subscribers to copy programs
with Hopper Transfers for viewing outside the home is meritless. Dish
makes Hopper Transfers available to its subscribers, controls how the
service operates, and determines how many copies can be made for
31
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viewing outside the home. ER 173, 1544, 1548, 1550. Dish says that
Hopper Transfers "lets customers move television recordings from the
DVR to an iPad for viewing without an internet connection .... such as on
a plane." ER 1544 (emphasis added). This is the definition of authorizing.
Dish also claims that "private home use" does not mean "private use
inside the home." RB 56. Instead, Dish argues that "'private home use"
really means "private noncommercial uses." ld. If that was what the
parties meant, they would have said so. "Private home use" must be given
its plain, ordinary meaning, i.e., copies used by Dish subscribers in their
private homes. Indeed, the Court need not look any further than Dish's
own Residential Customer Agreement where Dish expressly restricts its
own services to "Private Home Viewing," which Dish defmes as "solely
for viewing, use and enjoyment in your private home." ER 1742 (italics
added).
CONCLUSION
For the foregoing reasons, the district court's order denying a
preliminary injunction should be reversed.
February 28, 2014 Respectfully Submitted,
By: s/ Richard L. Stone
Richard L. Stone
32
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33
Richard L. Stone
Andrew J. Thomas
David R. Singer
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 Appellants
Case: 13-56818 02/28/2014 ID: 8998313 DktEntry: 32 Page: 40 of 43
CERTIFICATE OF COMPLIANCE
I certify that, pursuant to Federal Rule of Appellate Procedure
32(a)(7)(C) and Ninth Circuit Rule 32-1, the foregoing Reply Briefiis
proportionately spaced, has a typeface of 14 points or more, and contains
6,986 words.
February 28, 2014 Respectfully Submitted,
By: s/ Richard L. Stone
Richard L. Stone
34
Richard L. Stone
Andrew J. Thomas
David R. Singer
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 Appellants
Case: 13-56818 02/28/2014 ID: 8998313 DktEntry: 32 Page: 41 of 43
CERTIFICATE OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, Counsel for Appellants states
that there are no related cases pending in this Court.
f ,ebruary 28, 2014 Respectfully Submitted,
By: s/ Richard L. Stone
Richard L. Stone
35
Richard L. Stone
Andrew J. Thomas
David R. Singer
Amy M. Galfegos
JENNER & BLOCK LLP
633 West 5th Street, Suite
3600
Los Angeles, CA 90071
Paul M. Smith
JENNER & BLOCK LLP
1099 New York A venue, NW,
Suite 900
Washington, DC 2000 1
Attorneys for Appellants
Case: 13-56818 02/28/2014 ID: 8998313 DktEntry: 32 Page: 42 of 43
CERTIFICATE OF SERVICE
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 February 28, 2014.
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.
February 28, 2014 Respectfully Submitted,
By: s/ Richard L. Stone
Richard L. Stone
36
Richard L. Stone
Andrew J. Thomas
David R. Singer
Amy M. Galfegos
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 Appellants
Case: 13-56818 02/28/2014 ID: 8998313 DktEntry: 32 Page: 43 of 43

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