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CA Case Nos. 13-55156, 13-55157, 13-55226, and 13-55228

IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_______________________ NBCUNIVERSAL MEDIA, LLC; 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 (Hon. George Wu, Presiding) DC Nos. CV-12-6921-GW and CV-12-6950-GW NBCUNIVERSAL APPELLEES/CROSS-APPELLANTS’ PRINCIPAL BRIEF ON CROSS-APPEAL AND RESPONSE TO APPELLANTS’ PRINCIPAL BRIEF ON APPEALS

ARNOLD & PORTER LLP Ronald L. Johnston (SBN 57418) John C. Ulin (SBN 165524) James S. Blackburn (SBN 169134) 777 South Figueroa Street, 44th Floor Los Angeles, California 90017 Tel. 213-243-4000 / Fax 213-243-4199

ARNOLD & PORTER LLP Robert Alan Garrett 555 12th St. N.W. Washington, D.C. 20004 Tel. 202-942-5444 / Fax 202-942-5999

Attorneys for Plaintiffs-Appellees-Cross-Appellants NBCUniversal Media, LLC, Universal Network Television, LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC-TV), 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 Television, Inc.

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CORPORATE DISCLOSURE STATEMENT Plaintiffs-Appellees-Cross-Appellants NBCUniversal Media, LLC,

Universal Network Television, LLC, Open 4 Business Productions, LLC, NBC Subsidiary (KNBC-TV), 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 Television, Inc. (collectively, “Copyright Owners”) submit this Corporate Disclosure Statement, pursuant to Federal Rule of Appellate Procedure 26.1. The undersigned, counsel of record for Copyright Owners, state that: 1. NBCUniversal Media, LLC is owned, through intermediate entities, by Comcast Corporation, a publicly-traded company. 2. Universal Network Television, LLC is an indirect wholly-owned subsidiary of NBCUniversal Media, LLC. 3. Open 4 Business Productions LLC is an indirect wholly-owned subsidiary of NBCUniversal Media, LLC. 4. NBC Subsidiary (KNBC-TV), LLC owns and operates the television station KNBC-TV, an FCC-licensed broadcast station. 5. Telemundo Network Group LLC is an indirect wholly-owned subsidiary of NBCUniversal Media, LLC.

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6. WNJU-TV Broadcasting LLC is an indirect wholly-owned subsidiary of NBCUniversal Media, LLC. 7. American Broadcasting Companies, Inc. is an indirect, wholly-owned subsidiary of The Walt Disney Company, a publicly-traded company. 8. ABC Holding Company Inc. is a wholly-owned subsidiary of American Broadcasting Companies, Inc. 9. Disney Enterprises, Inc. is a wholly-owned subsidiary of The Walt Disney Company, a publicly-traded company. 10. CBS Broadcasting Inc. is an indirect wholly-owned subsidiary of CBS Corporation, a publicly traded company. National Amusements, Inc., a privately held company, beneficially owns the majority of the voting stock of CBS Corporation. 11. CBS Studios Inc. is an indirect wholly-owned subsidiary of CBS Corporation, a publicly traded company. National Amusements, Inc., a privately held company, beneficially owns the majority of the voting stock of CBS Corporation.

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12. Big Ticket Television, Inc. is an indirect wholly-owned subsidiary of CBS Corporation, a publicly traded company. National Amusements, Inc., a privately held company, beneficially owns the majority of the voting stock of CBS Corporation.

ARNOLD & PORTER LLP Dated: April 26, 2013 By: s/ John C. Ulin John C. Ulin Attorneys for NBCUniversal Appellees-Cross-Appellants.

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TABLE OF CONTENTS Page(s) CORPORATE DISCLOSURE STATEMENT ......................................................... i  LIST OF ABBREVIATIONS ................................................................................. vii  STATEMENT OF JURISDICTION..........................................................................1  STATEMENT OF THE ISSUES...............................................................................1  STATEMENT OF THE CASE ..................................................................................3  PRELIMINARY STATEMENT ...............................................................................3  STATEMENT OF FACTS ........................................................................................5  A.  B.  C.  Aereokiller’s Unlicensed Broadcast Retransmission Service ...............5  The Aereokiller Technology .................................................................9  The District Court’s Ruling .................................................................12 

STANDARD OF REVIEW .....................................................................................15  SUMMARY OF ARGUMENT ...............................................................................16  ARGUMENT ...........................................................................................................22  I.  The District Court Correctly Concluded That Copyright Owners Are Likely To Succeed On The Merits. ........................................................22  A.  The Language And History Of The 1976 Copyright Act Make Clear That Aereokiller’s Broadcast Retransmission Service Publicly Performs Copyrighted Programming. ...................................22  1.  Because It Retransmits The Same Broadcast Of A Television Program To Multiple Subscribers, Aereokiller’s Service Falls Squarely Within The Transmit Clause......................................22  Congress Did Not Provide A Technology Exemption To The Transmit Clause. .......................................................................25 

2. 

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3.  4.  B. 

Congress Intended To Include Broadcast Retransmission Services Such As Aereokiller In The Transmit Clause. ...........28  Aereokiller’s Broadcast Retransmission Service Makes Public, Not Private, Performances. ...........................................30 

Aereokiller’s Reliance Upon Cablevision And Aereo Is Misplaced. .31  1.  The Cablevision And Aereo Decisions Misinterpreted The Transmit Clause By Confusing The Terms “Performance” And “Transmissions.” ...............................................................31  The Interpretation Of The Transmit Clause Reflected In Cablevision And Aereo Is Inconsistent With Established Transmit Clause Jurisprudence. ................................................36  Cablevision’s And Aereo’s Misreading Of The Transmit Clause Is Not Necessary To Preserve Private Performances. ..39  This Court Should Not Apply Cablevision To Immunize Aereokiller From Copyright Liability Contrary To Congressional Intent. ................................................................41 

2. 

3.  4. 

C. 

None Of The Other Arguments Advanced By Aereokiller And Its Amici Supports The Conclusion That Aereokiller May Lawfully Provide An Unlicensed Broadcast Retransmission Service................45  1.  Congress Rejected The Notion That A Broadcast Retransmission Service Like Aereokiller Should Be Exempt From Copyright Liability Because It Provides Subscribers With Television Programming They Can Receive On Their Own. ..........................................................................................45  As This Court’s Decision In Professional Real Estate Investors Illustrates, Aereokiller Cannot Avoid Copyright Liability For Unlicensed Public Performances On The Ground That It Is Merely “Providing Technology.” ................47  Nothing In The Sony Decision Supports Exempting Aereokiller Or Any Other Broadcast Retransmission Service From Copyright Liability. .........................................................51 

2. 

3. 

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4.  II.  III. 

The Dish Court’s Volitional Analysis Has No Applicability To This Case. ............................................................................53 

The District Court Correctly Concluded That Each Of The Other Relevant Factors Support A Preliminary Injunction. ....................................56  The District Court Should Not Have Limited Its Injunction To The Geographic Boundaries Of The Ninth Circuit...............................................56 

CONCLUSION ........................................................................................................62  STATEMENT OF RELATED CASES ...................................................................64  CERTIFICATE OF COMPLIANCE .......................................................................65 

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LIST OF ABBREVIATIONS Aereokiller Defendants-Appellants-Cross-Appellees Aereokiller LLC, Alkiviades “Alki” David, FilmOn TV Networks, Inc., FilmOn.TV and FilmOn.com, Inc. Aereokiller’s Consolidated Opening Brief (filed March 15, 2013) Plaintiffs-Appellees-Cross-Appellants NBCUniversal Media, LLC, Universal Network Television, LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBCTV), 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 Television, Inc. Excerpts of Record (sealed and unsealed) Federal Communications Commission Brief of Plaintiffs-Appellees-CrossAppellants Fox Television Stations, Inc., et al. in CA Case Nos. 13-55156, 13-55157, 13-55226 (filed April 26, 2013) Opinion in Fox Television Stations, Inc. v. Barry Driller Content Sys., PLC, ___ F. Supp. 2d ___, 2012 WL 6784498 (C.D. Cal. Dec. 27, 2012) (Wu, J.), reprinted at ER 1324 (NBC) Transcript

AK Br.

Copyright Owners

ER FCC FOX Br.

Op.

Tr.

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TABLE OF AUTHORITIES Page(s) CASES Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir.1988) ............................................................................. 20 Am. Broad. Cos., Inc. v. Hang 10 Techs., Inc., Civ. No. 09-6216 (JAP) (D.N.J. Jan. 4, 2010).................................................... 10 Apple Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011) ................................................................58, 61, 62 Arista Records LLC v. Myxer Inc., No. CV 08-3935, 2011 U.S. Dist. LEXIS 109668 (C.D. Cal. Apr. 1, 2011) ..................................................................................... 55 Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) ............................................................................................ 35 Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”) .............................................passim CBS Broad., Inc. v. FilmOn.com, Inc., No. 10-cv-07532 (S.D.N.Y. Aug. 9, 2012).....................................................5, 10 Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989) ..................................................................37, 48, 49 Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3rd Cir. 1984) ........................................................................37, 38 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) ..........................................................................13, 14, 46, 47 Fox Broadcasting Co. v. Dish Network, LLC, ___ F. Supp. 2d ___, 2012 WL 593856 (C.D. Cal. Nov. 7, 2012) .........53, 54, 55 Fox Television Stations, Inc. v. Barry Driller Content Sys., PLC, ___ F. Supp. 2d ___, 2012 WL 6784498 (C.D. Cal. Dec. 27, 2012) ................... 1

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Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) ............................................................................... 53 ITV Broad. Ltd. v. TVCatchup Ltd., Case C-607/11 (European Court of Justice, Mar. 7, 2013) ................................ 10 Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987 (9th Cir. 1998) .............................................................................. 53 Marlyn Nutraceuticals, Inc. v. Mucos Pharma Gmbh & Co., 571 F.3d 873 (9th Cir. 2009) .............................................................................. 16 McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) ...................................................................... 15, 16 Metro One Telecomms., Inc. v. C.I.R., 704 F.3d 1057 (9th Cir. 2012) ............................................................................ 22 Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) .......................................................................... 59 New York Times Co. v. Tasini, 533 U.S. 483 (2001) ............................................................................................ 50 On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) ..................................................................... 37 Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381 (6th Cir. 1996) .............................................................................. 53 Soc’y of Composers, Authors & Music Publishers of Canada, SCC Case No 33922, 2012 SCC 35, [2012] 2 S.C.R. 283 (Canada Supreme Ct. July 12, 2012) .................................................................. 36 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (“Sony”).................................................................51, 52, 53 Stewart v. Abend, 495 U.S. 207, 227 (1990).................................................................................... 20 Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974) ................................................................................14, 46, 47

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Twentieth Century Fox Film Corp. v. iCraveTV, Nos. Civ. A. 00-121, 00-120, 2000 WL 255989 (W.D. Pa. Feb. 8, 2000) ...................................................................................... 10 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ................................................................................18, 28, 30 United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ............................................................59, 60, 61, 62 WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) .........................................................................10, 30 Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 192 F. Supp. 2d 321 (D.N.J. 2002) ...............................................................37, 53 Walt Disney Co. v. Powell, 897 F.2d 565 (D.C. Cir. 1990) ............................................................................ 59 Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 6 2d 1003 (C.D. Cal. 2011).....................................................................36, 37, 54 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................................ 15 WNET Thirteen v. Aereo, Inc., ___ F.3d ___, 2013 WL 1285591 (2d Cir. Apr. 1, 2013) ............................passim Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) .............................................................................. 53 STATUTES AND RULES 47 C.F.R. Part 76 ........................................................................................................ 7 17 U.S.C. § 101 .................................................................................................passim 17 U.S.C. § 106(1) .............................................................................................50, 53 17 U.S.C. § 106(3) ................................................................................................... 54 17 U.S.C. § 106(4) .......................................................................................22, 50, 53 17 U.S.C. § 111(a) ................................................................................................... 28 -x-

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17 U.S.C. § 111(a)(1) .........................................................................................28, 48 17 U.S.C. § 111(a)(2) ............................................................................................... 29 17 U.S.C. § 111(a)(3) .........................................................................................29, 48 17 U.S.C. § 111(a)(4) ............................................................................................... 29 17 U.S.C. § 111(a)(5) ............................................................................................... 29 17 U.S.C. § 111(c) ................................................................................................... 29 17 U.S.C. § 111(f) .................................................................................................... 29 17 U.S.C. § 119 ........................................................................................................ 29 17 U.S.C. § 122 ........................................................................................................ 29 17 U.S.C. § 502(a) .......................................................................................56, 57, 58 17 U.S.C. § 502(b) ............................................................................................passim 28 U.S.C. § 1292(a)(1) ............................................................................................... 1 47 U.S.C. § 325(a) ..................................................................................................... 7 FRAP 28(i) ............................................................................................................... 55 OTHER AUTHORITIES American Bar Association Section of Intellectual Property Law Past Action Book (2011-12) .........................................................................35, 38 H.R. Rep. No. 94-1476 (1976) ..........................................................................passim S. Rep. No. 94-473 (1975) ....................................................................................... 56 Brief of the United States as Amicus Curiae, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2009 WL 1511740 (U.S. May 29, 2009) .....................................................................................42, 43 Jane Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cable)Vision THe Media Institute (Apr. 23, 2013) ................................................................. 35

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Jane C. Ginsburg, Recent Developments in US Copyright Law -- Part II, Caselaw: Exclusive Rights on the Ebb? 26 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08158, Dec. 1, 2008)..................................................23, 32, 34, 35, 38 Paul Goldstein, Goldstein on Copyright (3d ed.) ........................................30, 32, 35 Hearings Before the Subcomm. On Courts, Civil Liberties, and the Admin. Of Justice of the House Comm. On the Judiciary, 96th Cong., 1st Sess. 32 (1979))................................................................................................................. 48 Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or.L. Rev. 505 (2010) .....................................26, 32, 35 Peter Mennell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 2012 J. Copyright Soc’y of U.S.A. (Aug. 26, 2011)e ........................................................................................................... 27 Greg Sandoval, Apple’s iCloud Launch Portends Music, CNET News (May 31, 2011).................................................................................................... 40 Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill (Comm. Print 1965) ................. 27 Jenna Wortham, No TV? No Subscription? No Problem, N.Y. Times (Apr. 6, 2013)...................................................................................................... 44

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This case involves the issue of whether a for-profit service (Aereokiller) may retransmit thousands of copyrighted broadcast television programs over the Internet to thousands of subscribers without obtaining the consent of the program owners or anyone else. The district court preliminarily enjoined Aereokiller’s blatantly infringing service, but only within the geographic boundaries of the Ninth Circuit. See Fox Television Stations, Inc. v. Barry Driller Content Sys., PLC, --- F. Supp. 2d ---, 2012 WL 6784498 (C.D. Cal. Dec. 27, 2012) (Wu, J.), reprinted at ER 13-24 (“Op.”). Copyright Owners respectfully request that the Court affirm the district court’s decision except insofar as it is geographically limited in scope. Copyright Owners’ cross-appeal urges the Court to extend the preliminary injunction to provide complete relief nationwide as provided in 17 U.S.C. § 502(b). STATEMENT OF JURISDICTION Copyright Owners agree with Aereokiller’s Jurisdictional Statement. Copyright Owners timely cross-appealed, on February 7, 2013, from the district court’s December 27, 2012 decision insofar as it limits the geographic scope of the preliminary injunction. This Court has jurisdiction to review the cross-appeal pursuant to 28 U.S.C. § 1292(a)(1). STATEMENT OF THE ISSUES A. The issues raised by Aereokiller’s appeal are whether the district court correctly issued a preliminary injunction based on its conclusions that:

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1.

A service that retransmits live broadcasts of television programming

to thousands of subscribers over the Internet publicly performs that programming within the meaning of the Transmit Clause of the Copyright Act, 17 U.S.C. § 101. Such a service does not avoid public performance liability under the Copyright Act by employing numerous individually assigned “mini-antennas” and subscriberassociated copies of the programs; and 2. The unauthorized retransmission by Aereokiller of thousands of

Copyright Owners’ television programs over the Internet to numerous subscribers irreparably harms Copyright Owners who license the same programs for distribution via the Internet and other media; that harm outweighs any hardship to Aereokiller from obeying the injunction; and the public interest is served by preventing the misappropriation of skills and resources that have been invested in the copyrighted programming that Aereokiller seeks to exploit without authorization. B. The issue raised by Copyright Owners’ cross-appeal is whether the district court, in confining the scope of the injunction to the geographic boundaries of the Ninth Circuit, erred where (a) Aereokiller engages in the same infringing activity and causes Copyright Owners the same irreparable harms nationwide; (b) Section 502(b) of the Copyright Act, 17 U.S.C. § 502(b), mandates that an injunction “shall be operative” nationwide and “enforceable” by any court with

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personal jurisdiction over Aereokiller; and (c) no court outside the Second Circuit has ruled that the conduct prohibited by the injunction is non-infringing. STATEMENT OF THE CASE In early August 2012, Aereokiller began streaming over the Internet all the programming on numerous broadcast television stations -- twenty-four hours per day, seven days per week -- without the consent of the affected stations or the copyright owners of the programming. On August 13, 2012, Copyright Owners filed a copyright infringement action against Aereokiller in the U.S. District Court for the Central District of California. On November 8, 2012, Copyright Owners moved, along with the plaintiffs in a related action, for a preliminary injunction. The court conducted three separate hearings on that motion. On December 27, 2012, the court

preliminarily enjoined Aereokiller’s unauthorized Internet retransmissions of Copyright Owners’ broadcast television programming, but limited the scope of the injunction to the geographic boundaries of the Ninth Circuit. These consolidated appeals and cross-appeals followed. PRELIMINARY STATEMENT Aereokiller represents the latest in a long line of services that, utilizing various technologies, have sought to retransmit over-the-air broadcasts of television programming without licenses to do so. In the 1976 Copyright Act,

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Congress made clear that such retransmissions are public performances subject to copyright owners’ exclusive rights. In doing so, Congress legislatively overruled two Supreme Court decisions that had reached contrary conclusions under the 1909 Copyright Act. Under the “Transmit Clause” of the 1976 Act, 17 U.S.C. § 101, anyone who transmits the “performance . . . of [a] work” “to the public” -- by “means of any device or process . . . [whether] now known or later developed” -- publicly performs that work and must obtain the necessary copyright licenses. Cable

operators (e.g., Comcast, Verizon and Time Warner Cable) and satellite carriers (e.g., DIRECTV and DISH) engage in public performances, as defined by the Transmit Clause. That is because each of these providers retransmits broadcasts of copyrighted programming (e.g., the KCBS-TV 9:00 PM Sunday broadcast of The Good Wife) to their subscribers. Consumers themselves may view broadcast television programming without charge and without incurring any copyright liability. But, as Congress determined in the 1976 Act, commercial enterprises cannot retransmit that programming to their paying subscribers without obtaining negotiated or statutory copyright licenses. Just like cable systems and satellite carriers, Aereokiller retransmits broadcasts of copyrighted television programs to numerous subscribers on a live,

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real-time basis.

Aereokiller’s retransmission service therefore comes squarely

within the Transmit Clause. By failing to obtain the necessary copyright licenses to retransmit broadcast television programming, Aereokiller is infringing as the district court correctly held. STATEMENT OF FACTS A. Aereokiller’s Unlicensed Broadcast Retransmission Service

Aereokiller launched its service in August 2012 by streaming over the Internet through its website the signals of broadcast television stations from the Los Angeles, Chicago, New York, and Minneapolis markets.1 This broadcast programming includes programs whose copyrights are owned by Copyright Owners, including such well-known shows as Saturday Night Live (NBC), Grey’s Anatomy (ABC), and The Good Wife (CBS). ER 1654-740, 1743-45, 1759-86, 1791-92, 1820-21. Copyright Owners did not consent to the retransmissions.

After Copyright Owners filed this infringement action against Aereokiller in the Central District of California for the unauthorized retransmission of their programming, Aereokiller expanded its service to stream broadcast stations from

Only days earlier, one of Aereokiller’s affiliated companies had agreed to a consent judgment that permanently enjoined its unauthorized streaming of Copyright Owners’ programming over the Internet. See CBS Broad., Inc. v. FilmOn.com, Inc., No. 10-cv-07532 (S.D.N.Y. Aug. 9, 2012); ER 1265, 1271-94, 2587, 2642-46.

1

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Dallas, San Francisco, Miami, Las Vegas, and Washington, D.C., without the consent of any party. ER 37-38 (Tr.), 64 (Tr.), 1820-21, 1823, 2576-77, 2593-98. Aereokiller originally made its service available at www.barrydriller.com. ER 1791-92, 1820-21. Barry Diller (a principal investor in the Aereo service that Aereokiller seeks to mimic) successfully sued Aereokiller for misuse of his name. Aereokiller then began redirecting viewers to www.filmonx.com. ER 1792, 182021, 2565, 2590-92. Simply by clicking on a particular broadcast station listed on the program guide on the www.filmonx.com website, a visitor to that site is able to view on her laptop or personal computer the content -- including copyrighted programming -- being televised by the station at that time, just like a subscriber to a cable system can view the same program by turning on her television set. ER 218-19, 1823-24, 1853-57. Aereokiller’s subscribers may access the same broadcast programming on their mobile devices using “apps” compatible with iPhones, Android phones, Facebook, and Windows. ER 1825, 1843-51, 1880-91. Just like cable and satellite providers, Aereokiller retransmits all of Copyright Owners’ broadcasts 24 hours a day, 7 days a week.2 Aereokiller does not simply provide a feed of each broadcast signal. It also provides a channel

In addition, Aereokiller provides its subscribers with access to various nonbroadcast channels. Unlike the broadcast programming, Aereokiller allegedly obtains the necessary copyright licenses to retransmit its non-broadcast programming.

2

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guide and a player that allows its subscribers to view the programming on various devices. ER 1823-25, 1852-1901. Aereokiller seeks to compete with -- indeed, supplant -- traditional broadcast retransmission services, such as cable systems and satellite carriers, that also offer subscribers access to over-the-air broadcasts. But Aerokiller does this without complying with any copyright license obligations. Aereokiller also does not obtain the consent of the broadcast stations whose signals it retransmits, as required by 47 U.S.C. § 325(a); does not comply with FCC rules applicable to cable systems and satellite carriers (see 47 C.F.R. Part 76); does not obtain any state, local, or FCC authorizations; does not have any control of the delivery infrastructure (the Internet) over which it sends Copyright Owners’ programming; does not compensate Copyright Owners for retransmitting their works to Aereokiller’s subscribers; and does not comply with any of the contractual terms to which licensed cable operators and satellite and Internet services typically agree in marketplace negotiations with Copyright Owners. ER 1267-68, 1744-45, 1752-56. Traditional cable and satellite services increasingly offer their subscribers access to programming via the Internet as well as their own proprietary facilities (known in the industry as “TV Everywhere”). ER 1750-52. These services seek to respond to the growing demand of consumers who wish to receive their favorite TV programming not just on the family-room television set at its scheduled time,

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but anytime and wherever they may be located. Id. Unlike Aereokiller, however, these services negotiate in the marketplace with Copyright Owners for the rights to offer their subscribers Internet access to over-the-air broadcasts as well as the programming on various non-broadcast channels. Id. Aereokiller also competes with a variety of other Internet-based broadcast services by misappropriating without authorization the same programming that Copyright Owners license to those services for viewing on personal computers, laptops, tablets, smartphones, and other devices. For example, Copyright Owners (a) license those programs to Internet services such as Hulu.com and Apple’s iTunes; (b) make the programs available on their own websites; and (c) make the programs available for viewing on mobile devices though mobile broadcast applications, such as Dyle (a joint venture including NBCUniversal and FOX). ER 1744, 1746-47, 1750-52. Aereokiller is a commercial enterprise that financially benefits from its infringing conduct. Aereokiller charges its subscribers fees to watch the

programming on the retransmitted stations live in high definition and to copy that programming for later viewing. ER 1823-24, 1858-65, 2561. Aereokiller does not currently charge users to view retransmitted broadcast programming in standard definition, but it derives advertising revenues from those retransmissions. ER 1824-25, 1866-79, 2583-98. It airs ten-to-thirty-second advertising spots that users

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view immediately after they select one of the broadcast channels and before they can view the selected channel. ER 1752, 1824, 1866-71, 2561. Aereokiller also advertises its own programs and affiliated services, such as Battle CAM Community TV and FilmOn.tv, through banner ads placed directly above the unauthorized displays of Copyright Owners’ programming. ER 1824-25, 1872-76. B. The Aereokiller Technology

Aereokiller does not dispute that its service is functionally equivalent to licensed retransmission services. Aereokiller, however, claims it has engineered its service in a manner that allows it to side-step any requirement to obtain copyright licenses for that service. Aereokiller says its technology is “similar” “in all

material respects” (AK Br. 7, 9) to that employed by its namesake Aereo, which a federal district court in the Southern District of New York declined to preliminarily enjoin. A divided panel of the Second Circuit Court of Appeals recently affirmed that decision. See WNET Thirteen v. Aereo, Inc., ___ F.3d ___, 2013 WL 1285591 (2d Cir. Apr. 1, 2013) (“Aereo”), petitions for rehearing en banc filed April 15, 2013. The Second Circuit ruled that Aereo’s service does not make public

performances under that court’s interpretation of the Transmit Clause in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”), believing that principles of “stare decisis” required it to adhere to that interpretation. But see Aereo, 2013 WL 1285591, at *15-22 (Chin, J., dissenting)

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(explaining that under the plain language and legislative history of the Transmit Clause, Aereo makes public performances and that there are “critical differences between Cablevision and [Aereo]”). Aereo stands as the lone exception in a line of cases, both within and outside the United States, where courts have enjoined services from retransmitting live broadcast television programming over the Internet without copyright owner consent. See WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012), cert. denied, 133 S.Ct. 1585 (2013); CBS Broad., Inc. v. FilmOn.com, Inc., No. 10-cv-07532 (S.D.N.Y. Aug. 9, 2012) (consent judgment); Am. Broad. Cos., Inc. v. Hang 10 Techs., Inc., Civ. No. 09-6216 (JAP) (D.N.J. Jan. 4, 2010) (consent judgment); Twentieth Century Fox Film Corp. v. iCraveTV, Nos. Civ. A. 00-121, 00-120, 2000 WL 255989, at *1 (W.D. Pa. Feb. 8, 2000); ITV Broad. Ltd. v. TVCatchup Ltd., Case C-607/11 (European Court of Justice, Mar. 7, 2013), available at http://curia.europa.eu/juris/document/document.jsf? text=&docid=134604&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&p art=1&cid=279461. Aereokiller asserts, and the district court assumed for purposes of the preliminary injunction, that Aereokiller’s technology is similar in all material respects to the technology in Aereo. According to Aereokiller, it houses thousands of “mini-antennas” and digital recording devices at central locations in several

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cities across the country. AK Br. 7-8. When an Aereokiller subscriber selects a particular broadcast station on the FilmOn website or app, Aereokiller assigns that subscriber one of its mini-antennas. These are not dedicated antennas. Instead, Aereokiller alleges that it assigns a different mini-antenna each time that the subscriber logs on. AK Br. 7-8; ER 1257-58. The antenna receives the signal of the broadcast station chosen by the subscriber. Aereokiller’s technology (“routers, servers, tuners, transcoders and other equipment” (AK Br. 8)) then streams a transcoded version of that signal over the Internet to the subscribers’ Internetconnected devices, such as smartphones, tablets, laptops, and personal computers. Finally, Aereokiller says that the program streams sent to its subscribers emanate from individual copies that are unique to each subscriber. ER 1258. From an engineering standpoint, it is undisputed that Aereokiller’s use of multiple “mini-antennas” (when one would suffice) and individualized streams is inefficient; this arrangement serves no purpose other than Aereokiller’s hope of circumventing the need to obtain copyright licenses and to compensate copyright owners. ER 90 (Tr.), 103-04 (Tr.), 2571, 2573, 2588. See Aereo, 2013 WL 1285581, at *15 (Chin, J., dissenting) (“Aereo’s ‘technology platform’ is . . . a sham. . . . [I]ndeed the system is a Rube Goldberg-like contrivance, overAK Br. 7-8, 29;

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engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”). C. The District Court’s Ruling

The district court correctly concluded that Copyright Owners are likely to succeed on the merits of their infringement claims against Aereokiller. Op. 3-6. In reaching that conclusion, the court noted there is no dispute that Aereokiller retransmits the broadcasts of programming in which Copyright Owners own the copyrights. Id. at 3. The only issue is whether Aereokiller engages in public performances of that programming. As the district court stated, the question is “whether it is a public performance to receive a broadcast with an antenna assigned to a single subscriber, and then retransmit that separately-received transmission over the internet to a particular subscriber.” Id. at 3 n.9. The court correctly concluded that Aereokiller’s retransmissions are “public performances, and therefore infringe Plaintiffs’ exclusive right of public performance.” Id. at 4. Based on Aereokiller’s representations, the district court assumed that Aereokiller’s technology is materially the same as the technology at issue in Aereo and Cablevision. Id. at 3. It then carefully considered whether the courts in Cablevision and Aereo had properly interpreted the Transmit Clause. Based upon its review of the statutory language, legislative history and precedent within the

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Ninth Circuit, the district court concluded that the courts in Cablevision and Aereo had misconstrued the Transmit Clause. Id. at 4-6. As the district court explained, the Cablevision and Aereo courts misread the Transmit Clause as requiring that each transmission of a performance must itself be “to the public.” Id. at 4 & n.10. Under this approach, those courts mistakenly focused on whether each transmission was made from a unique copy of a program to determine whether the performance of that program is public. The district court found that “Cablevision’s focus on the uniqueness of the individual copy from which a transmission is made is not commanded by the statute.” Id. at 5. Instead, under the language and legislative history of the Transmit Clause, “the concern is with the performance of the copyrighted work, irrespective of which copy of the work the transmission is made from.” Id. (emphasis in original). The district court also rejected the approach in Cablevision and Aereo as “in tension with precedent in the Ninth Circuit,” which “properly looks at the public performance of the copyrighted work,” and does not focus, as Cablevision and Aereo do, “on whether the transmission is publicly performed.” Id. The district court further noted that the courts in Cablevision and Aereo “reached their results by reasoning that the defendant was providing a service equivalent to what individuals could lawfully do for themselves.” Id. The district court correctly observed that was the very reasoning of the Supreme Court when it

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determined in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), that retransmissions of broadcast programming by cable operators do not incur copyright liability under the 1909 Copyright Act. Congress, however,

rejected that reasoning when, in the 1976 Act, it legislatively overruled Fortnightly (and Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974)). Op. 6. The district court also rejected Aereokiller’s attempt to analogize its service to “self-contained portable televisions of the kind that have been available for many years.” Id. The court explained that “in marked contrast” to Aereokiller, such portable televisions “do not ‘send[] out some sort of signal via a device or process to be received by the public at a place beyond the place from which it is sent,’” but instead merely play the broadcast signal “within inches of the place the signal is received by the attached antenna . . . .” Id. The district court further concluded that Copyright Owners had demonstrated multiple irreparable harms. The court determined that these harms are irreparable, both because they are difficult to calculate and not easily compensable, and because Aereokiller was unlikely to be able to satisfy a statutory damages award. Id. at 6-7. The district court also found that the harm to

Copyright Owners outweighed any harm to Aereokiller which has “no equitable interest in continuing an infringing activity.” Id. at 7. And it concluded that the

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public interest would be served by an injunction that “‘uphold[s] copyright protections and correspondingly, prevent[s] the misappropriation of skills, creative energies, and resources which are invested in the protected work[s].’” Id. Nevertheless, the district court ruled that, “principles of comity prevent the entry of an injunction that would apply in the Second Circuit,” where the courts in Cablevision and Aereo interpreted the Transmit Clause differently from the district court. Id. at 8. The district court also suggested that courts in other circuits “might adopt” the Cablevision and Aereo construction, even though none has done so. Id. Accordingly, the district court limited the injunction to the geographic boundaries of the Ninth Circuit. Id. Because Aereokiller offers its unauthorized

retransmission service in several cities outside the Ninth Circuit, including New York, Chicago, Miami, and Washington, D.C., Aereokiller’s infringement and the irreparable harm it causes is ongoing. ER 37-38 (Tr.), 64 (Tr.), 1820-21, 1823, 2576-77, 2593-98. STANDARD OF REVIEW “‘A plaintiff seeking a preliminary injunction must establish that [s]he is likely to succeed on the merits, that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest.’” McCormack v. Hiedeman, 694 F.3d

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1004, 1010 (9th Cir. 2012) (bracketed material in original) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). This Court “review[s] a district court’s grant of a preliminary injunction for an abuse of discretion. ‘[O]ur inquiry is at an end once we determine that the district court employed the appropriate legal standards which govern the issuance of a preliminary injunction, and . . . correctly apprehended the law with respect to the underlying issues in [the] litigation.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma Gmbh & Co., 571 F.3d 873, 876 (9th Cir. 2009) (citations omitted). “The district court’s interpretation of underlying legal principles is subject to de novo review.” McCormack, 694 F. 3d at 1010. SUMMARY OF ARGUMENT Aereokiller’s service allows “thousands, and potentially millions, of people” (Op. 5 n.12) to view the same broadcast of a copyrighted television program at the same time. The district court reached the common-sense conclusion that

Aereokiller thus makes a public performance of that program -- as do cable systems, satellite carriers, and other services when they likewise retransmit the same broadcast of a program to multiple subscribers. The district court’s

conclusion is mandated by the language and legislative history of the Transmit Clause, as well as precedent from within and outside this Circuit.

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Aereokiller and its amici challenge that conclusion on three grounds, none of which has merit. First, Aereokiller believes it has found a loophole. It says it can engineer its system, with numerous “mini-antennas” and digital recording devices, to avoid the statutory requirement that broadcast retransmission services obtain copyright licenses. Congress, however, did not adopt any technology exemption to the public performance right. Indeed, one of its principal objectives in enacting the 1976 Copyright Act was to ensure that unforeseen changes in technology would not erode the value of the exclusive rights accorded copyright owners. To accomplish that objective, Congress drafted the Transmit Clause “broad[ly]” to define public performance as including the transmission of a “performance . . . of [a] work” “to the public” “by means of any device or process” “now known or later developed” -- irrespective of whether those “capable of receiving” the performances in question do so “in the same place or in separate places” and at “the same time or at different times.” 17 U.S.C. § 101 (emphasis added). Congress sought to foreclose precisely the

argument that Aereokiller and its amici now advance concerning the significance of Aereokiller’s contrived system of subscriber-associated mini-antennas and unnecessary recordings of television programs. Regardless of whether Aereokiller utilizes one antenna or multiple antennas or one copy or multiple copies, or whether it makes one stream to multiple

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subscribers or a single stream to each subscriber, Aereokiller is exploiting without authorization copyrighted works created by others. And the economic value of that exploitation is the same regardless of Aereokiller’s technological manipulations. None of Aereokiller’s gimmickry can obscure the fundamental facts that (a) Aereokiller is offering a broadcast retransmission service, just as cable systems and satellite carriers do; and (b) Congress intended to impose copyright liability on all such services without regard to their technology (subject to express statutory limitations that Aereokiller agrees are not present here). Second, Aereokiller and its amici assert that Aereokiller transmits only thousands of performances that are “private” and thus outside the reach of the copyright laws. An individual who sings a song in the shower makes a private performance of that song. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 155 (1975). An individual who transmits a television program throughout his or her home makes a private performance of that program. But, as the district court correctly concluded, Aereokiller’s retransmission of the same broadcast of a program from Aereokiller’s retransmission facilities to multiple subscribers in other locations is not a private performance. It is not in any way comparable to an individual singing in the shower or transmitting a program throughout her home. It is a public performance that falls squarely within the Transmit Clause, just as it is a

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public performance when cable systems and satellite carriers engage in the same commercial activity. Aereokiller and its amici repeatedly attempt to portray Aereokiller’s conduct as nothing more than “providing technology” that consumers use privately to view and to record copyrighted programming. But Aereokiller is not a Best Buy or Radio Shack, selling antennas or DVR devices. Aereokiller sells programming. It is a turnkey subscription service that provides its subscribers access to broadcasts of copyrighted television shows through a website with a program guide, advertising, a video player, and the imposition of an advertising logo across Copyright Owners’ programming. It is similar in this regard to cable systems, satellite carriers, and other retransmission services that sell their paying subscribers access to such broadcasts. Those who subscribe to Aereokiller, like those who subscribe to cable and satellite, do so to view copyrighted television programming, not to “direct equipment” and to “use technology.” AK Br. 4, 5. Any broadcast retransmission service (cable, satellite, or otherwise) could make the same claim as Aereokiller, i.e., that they too are simply “providing technology” for others to use to view and to record programming. Congress never intended that broadcast retransmission services could forgo securing (or qualifying for) the necessary copyright licenses by mischaracterizing themselves as purveyors of technology rather than programming. Congress determined that services like

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Aereokiller are commercial enterprises built around the exploitation of copyrighted programming for which they must obtain negotiated or statutory licenses. It

carefully crafted legislation to bring within the sweep of the Transmit Clause thenunforeseen technological means of distributing such programming, including the distribution technology at issue here. Third, Aereokiller and its amici ask this Court to adopt the interpretation of the Transmit Clause that the Second Circuit adopted in Cablevision and that a divided panel in Aereo followed for reasons of stare decisis. As the district court below and prominent copyright experts have recognized, Cablevision

misinterpreted the Transmit Clause. Avoidance of a circuit split (as Aereokiller’s amici urge) is not a valid reason for acquiescing to a non-binding decision from outside the Ninth Circuit that is simply wrong. See, e.g., Abend v. MCA, Inc., 863 F.2d 1465, 1473-76, 1482 (9th Cir.1988) (disagreeing with prior Second Circuit interpretation of the 1909 Copyright Act), aff’d sub nom. Stewart v. Abend, 495 U.S. 207, 227 (1990) (agreeing with Ninth Circuit interpretation). Contrary to the plain language of the Transmit Clause, Cablevision erroneously focuses upon whether each transmission of a performance of a work is available to the public. Under the Transmit Clause, however, the proper focus is upon whether the particular service transmits the same performance of the work to the public, not whether each transmission itself is available to the public.

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Aereokiller, like cable systems and satellite carriers, retransmits the same broadcast of a program (the same “performance of the work”) to numerous subscribers. It therefore makes public performances. Because Aereokiller is not licensed to make public performances, it infringes the copyrights in the thousands of broadcast programs that it retransmits in real time over the Internet in cities throughout the country. As other courts have recognized and as the uncontroverted record below demonstrates, such unauthorized retransmissions cause irreparable harm to Copyright Owners. Accordingly, this Court should affirm the district court’s preliminary injunction against Aereokiller. The district court, however, erroneously limited that injunction to the geographic boundaries of the Ninth Circuit. It did so based on misplaced concerns about comity, given the Cablevision decision in the Second Circuit and its belief that other circuits “might adopt” the Cablevision construction, although none has done so. The narrow injunction will require Copyright Owners to sue Aereokiller in each of the other circuits where it engages in infringing activity in order to protect their copyrights. Section 502(b) of the Copyright Act, 17 U.S.C. § 502(b), provides that injunctions against copyright infringement “shall be operative nationwide” and “enforceable” by any court with personal jurisdiction over the

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infringer. This Court should extend the district court’s injunction nationwide, as the statute mandates. ARGUMENT I. The District Court Correctly Concluded That Copyright Owners Are Likely To Succeed On The Merits. The issue of whether Copyright Owners are likely to succeed on the merits turns upon whether Aereokiller engages in public performances, as defined in the Transmit Clause, when it simultaneously retransmits the same broadcast of a television program in real time to numerous subscribers -- each of whom allegedly receives a separate retransmission of that broadcast by virtue of Aereokiller’s use of individually-assigned “mini-antennas” and digital recording devices. Op. 4. The district court correctly held that such retransmissions are public performances. A. The Language And History Of The 1976 Copyright Act Make Clear That Aereokiller’s Broadcast Retransmission Service Publicly Performs Copyrighted Programming. 1. Because It Retransmits The Same Broadcast Of A Television Program To Multiple Subscribers, Aereokiller’s Service Falls Squarely Within The Transmit Clause.

“When interpreting a statute we must start with the language of the statute.” See Metro One Telecomms., Inc. v. C.I.R., 704 F.3d 1057, 1061 (9th Cir. 2012). Section 106(4) of the Copyright Act, 17 U.S.C. § 106(4), affords copyright owners the exclusive right to “perform the copyrighted work publicly.” Section 101 states that “[t]o perform or display a work ‘publicly’” means

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(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or 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. 17 U.S.C. § 101. Clause (2) is the “Transmit Clause.” “To ‘transmit’ a

performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” Id. “A ‘device’ . . . or ‘process’ is one now known or later developed.” Id. Aereokiller satisfies each element of the Transmit Clause. It (1) “transmits” (communicates beyond the place from which it sends); (2) “to the public” (thousands of subscribers); (3) by “means of any device or process” “now known or later developed” (mini-antennas “along with routers, servers, adapters, tuners, transcoders and other equipment” (AK Br. 8)); (4) a “performance . . . of [a] work” (a particular broadcast by a television station of a program). See 1976 H.R. Rep. No. 94-1476, at 63 (1976) (“1976 Report”) (under the definition of “perform,” “a local broadcaster is performing when it transmits the network broadcast”). Aereokiller counters that it avoids the Transmit Clause because it makes separate retransmissions of the same broadcast to each of its viewers, i.e., each

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subscriber receives his or her own individual retransmission of a broadcast. But that is a distinction without a legal difference. By its very terms, the Transmit Clause applies regardless of “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.” 17 U.S.C. § 101. Congress

thus contemplated that the Transmit Clause would apply even where a service makes separate transmissions as Aereokiller claims to do. See infra pages 28-31. “The phrase ‘members of the public capable of receiving the performance’ . . . clarif[ies] that a transmission is still ‘to the public’ even if its receipt is individualized.” Jane C. Ginsburg, Recent Developments in US Copyright Law -Part II, Caselaw: Exclusive Rights on the Ebb? 26 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08158, Dec. 1, 2008) (published in 218 Revue Internationale du Droit d’Auteur (2008) (Fr.)), available at http://ssrn.com/abstract=1305270. Congress intended that broadcast retransmission services, such as cable systems, would come within the Transmit Clause so long as they made the same “performance” available to their subscribers, not the same transmission: [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 - 24 -

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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. 1976 Report at 64-65 (emphasis added). Accordingly, Congress contemplated that broadcast retransmission services would make public performances even where they made separate transmissions to individual subscribers. As Copyright Owners demonstrated in the court below, all broadcast retransmission services (not just Aereokiller) make such separate transmissions. ER 148-52 (Tr.), 157-59 (Tr.), 193-94, 197, 201-02, 216, 231. 2. Congress Did Not Provide A Technology Exemption To The Transmit Clause.

Aereokiller claims it is exempt from the Transmit Clause because it has creatively designed its retransmission technology to avoid making public performances. Aereokiller is wrong. The Transmit Clause is expressly

technology-neutral. As noted above, it applies to transmissions made “by means of any device or process.” 17 U.S.C. § 101 (emphasis added). This broad language is repeated in the definition of the term “transmit:” To transmit a performance of a work means to transmit it by “any device or process.” Id. The definition of “device or process” underscores the fact that Congress intended the Transmit Clause to capture all possible technologies. “[D]evice or process” includes all those “now known or later developed.” Id.

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The legislative history further confirms Congress’ 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 wired or 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 id. at 63 (noting that 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). As Congress expressly noted, the “approach of the [1976 Act] is to set forth the copyright owner’s exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in the 12 sections that follow.” Id. at 61 (emphasis added). Congress “state[d] the public performance right in broad terms . . . .” Id. at 62. And it “enacted the transmit clause to make the performance right as broad as possible . . . .” Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or. L.

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Rev. 505, 541 (2010). In doing so, Congress followed the advice of the Register of Copyrights: Obviously no one can foresee accurately and in detail the evolving patterns in the ways author’s works will reach the public 10, 20, or 50 years from now. Lacking that kind of foresight, the 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 materially affect the value of his copyright . . . . A real danger to be guarded against is that of confining the scope of an author’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances. For these reasons, we believe the author’s rights should be stated in the statute in broad terms, and that the specific limitations on them should not go any further than is shown to be necessary in the public interest. Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill at 13-14 (Comm. Print 1965) (emphasis added). Congress “conceived of the exclusive rights broadly [and] encouraged courts to interpret them so as to avoid their erosion as a result of unforeseen technological changes . . . .” Peter Mennell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 2012 J. Copyright Soc’y of U.S.A., at 57-58 (Aug. 26, 2011), available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1679514; see Aiken, 422 U.S. at 158 (copyright laws “‘should not be so narrowly construed as to permit their evasion because of changing habits due

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to new inventions and discoveries’”) (citation omitted) (legislatively overruled on other grounds). Nothing in the language of the statute or the legislative history provides support for Aereokiller’s position that the Transmit Clause does not encompass Aereokiller’s technological platform. 3. Congress Intended To Include Broadcast Retransmission Services Such As Aereokiller In The Transmit Clause.

The district court’s conclusion that Aereokiller comes within the plain language of the Transmit Clause finds additional support in the legislative history of the 1976 Copyright Act concerning broadcast retransmission services. As that history reflects, Congress drafted the Transmit Clause to ensure that it encompasses commercial services, such as cable television systems, that build their businesses on exploiting broadcast television programming. explained: Cable television systems are commercial subscription services that pick up broadcasts of programs originated by others and retransmit them to paying subscribers. . . . . In general, the Committee believes that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and that copyright royalties should be paid by cable operators to the creators of such programs. 1976 Report at 88-89. Aereokiller too is a “commercial enterprise[] whose basic retransmission operations are based on the carriage of copyrighted material.” And As Congress

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it too should be subject to copyright liability and “pay copyright royalties” to the owners of the programming from which it profits. Congress gave considerable thought to the narrow categories where broadcast retransmission services should not be subject to full copyright liability. Those categories are identified in Section 111(a) of the 1976 Copyright Act. And none bears any resemblance to Aereokiller’s for-profit, non-governmental, subscription service that obtains no licenses whatsoever. See 17 U.S.C.

§ 111(a)(1) (creating an exemption in certain circumstances for the “management of a hotel, apartment house, or similar establishment”); id. § 111(a)(2) (exempting “an accredited nonprofit educational institution” in certain circumstances); id. § 111(a)(3) (exempting “passive carriers” in certain circumstances); id. § 111(a)(4) (exempting satellite carriers that qualify for “compulsory” or “statutory” licenses under Sections 119 and 122 of the Act); and id. § 111(a)(5) (exempting a “governmental body, or other nonprofit organization” in certain circumstances). Congress also afforded “cable systems” (as defined in 17 U.S.C. § 111(f)) “compulsory” or “statutory” licenses to retransmit broadcast programming live, provided they comply with (a) FCC rules, including the requirement that they obtain consent from broadcast stations whose signals they retransmit; and (b) various statutory conditions, including the payment of royalties. See id.

§ 111(c). Those that qualify for such licenses need not negotiate performance

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licenses with copyright owners. But Congress did not extend compulsory licensing to services like Aereokiller that retransmit broadcast programming via the Internet. See ivi, 691 F.3d at 279-85. Because Internet services do not qualify for

compulsory licensing or any other statutory exemption, Congress intended that they secure negotiated licenses to retransmit broadcast programming. Several Internet services (such as Hulu, Amazon, and Netflix) do obtain licenses, but Aereokiller -- which offers a functionally equivalent service -- does not. 4. Aereokiller’s Broadcast Retransmission Service Makes Public, Not Private, Performances.

In suggesting that this case involves only thousands of non-actionable private performances, Aereokiller and its amici miss or ignore the Congressional rationale for distinguishing between public and private performances. When

Congress made that distinction, it “adhered to a central copyright principle: all who derive value from using a copyrighted work should pay for that use . . . .” Paul Goldstein, Goldstein on Copyright § 7.7.2 (3d ed. 2008 Supp). Congress, however, also determined that “rights should not be extended to situations, such as singing in the shower, where interests in privacy or the small scale of the use will typically make it inappropriate or impracticable for the copyright owner to detect the use and for the copyright owner and user to negotiate a license.” Id.; see Aiken, 422 U.S. at 155. By drawing a line between public and private performances, Congress sought to “strike a balance” between these principles. Id. - 30 -

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None of these principles support the view that Aereokiller’s service involves private, rather than public performances. Retransmitting broadcasts of copyrighted television programs to thousands of subscribers through one antenna or multiple antennas, using one program copy or multiple copies -- does not implicate Congress’ concerns with privacy or “small scale” uses for which licensing is impractical. B. Aereokiller’s Reliance Upon Cablevision And Aereo Is Misplaced.

Aereokiller and its amici argue that Aereokiller does not come within the Transmit Clause under the Second Circuit’s interpretation of that provision in Cablevision and Aereo. The district court correctly rejected that argument. 1. The Cablevision And Aereo Decisions Misinterpreted The Transmit Clause By Confusing The Terms “Performance” And “Transmissions.”

The Cablevision case involved a traditional cable system (Cablevision Systems Corporation (“Cablevision”)) that had obtained, and paid for, licenses to retransmit copyrighted programming on a live, real-time basis. Cablevision also offered a Remote Storage DVR (“RS-DVR”) service that it delivered through a standard set-top box in the subscriber’s home. The recording of programs occurred at Cablevision’s headend facilities, and Cablevision stored those recordings at that headend. Cablevision associated a unique recording of each program with a

particular subscriber and would use that copy to support a later playback of the

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program to the subscriber. The Second Circuit concluded that, because this service was functionally identical to a consumer’s in-home DVR device, Cablevision was not required to obtain a second set of licenses from copyright owners. In reaching that conclusion, the court found that the RS-DVR playbacks do not constitute public performances under the Transmit Clause. The Cablevision Court predicated its analysis of the Transmit Clause upon the observation that a “transmission of a performance is itself a performance.” 536 F.3d at 134 (citations omitted). It then focused, incorrectly, upon the potential audience for each individual transmission -- rather than, as required by the plain language of the Transmit Clause, upon whether those transmissions contain the same “performance of a work.” See id. at 139 (“[T]he transmit clause directs us to identify the potential audience of a given transmission, i.e., the persons ‘capable of receiving it,’ to determine whether that transmission is made to the public.”) (emphasis added); accord id. at 138. In Aereo, a divided panel of the Second Circuit followed that interpretation. 2013 WL 1285591, at *13. The fundamental flaw in the Cablevision analysis is that by focusing upon the potential audience for each transmission, the court replaced the term “performance” in the Transmit Clause with the term “transmission,” thereby improperly rewriting the clause to read: to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any - 32 -

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device or process, whether 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. See Paul Goldstein, Goldstein on Copyright § 7.7.2.2 (3d ed. 2012) (“The error in the Second Circuit’s construction of the transmit clause was to treat ‘transmissions’ and ‘performance’ as synonymous, where the Act clearly treats them as distinct -and different --operative terms. . . . There can be little doubt that the italicized word it in the definition refers to ‘performance or display,’ not transmission . . . .”); Jane Ginsburg, supra, at 26 (“the court confused ‘performance’ and ‘transmission’”); Jeffrey Malkan, supra, 89 Or. L. Rev. at 536, 553 (the court “thought that the words ‘performance’ and ‘transmission’ were interchangeable . . . [but] a transmission and a performance remain, technically and legally, two distinct things . . . . The principal error in the court’s interpretation of the transmit clause was that it substituted the word ‘transmission’ for the word ‘performance’ in the phrase ‘capable of receiving the performance . . . .’”). The Cablevision court’s erroneous substitution of the word “transmission” for “performance” led to a result that was exactly the opposite of what the statute means and what Congress intended. To determine who is “capable of receiving” each distinct transmission required the court in Cablevision to focus on the individual transmissions while ignoring the fact that the performance of the

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copyrighted works (i.e., the particular broadcast of a television program) being communicated by the transmissions is “capable of being received” by all of Cablevision’s subscribers. See Cablevision, 536 F.3d at 135-136. The primary

problem with focusing on the individual transmissions in isolation is that it reads the “different times” language out of the Transmit Clause: The court’s construction clashes with the text of the Act in another important way as well: it is not possible to transmit a performance “created by the act of transmission” to members of the public “at different times.” While such a “performance” could be transmitted simultaneously to differently located recipients, recipients differently situated in time cannot receive the same transmission. The court’s interpretation thus reads non simultaneous receipt out of the statute. Jane Ginsburg, supra, at 25; see id. at 25-26 (“Because the Act explicitly covers performances that are transmitted to members of the public who are separated in time, however, the Second Circuit’s statutory construction cannot be correct.”). The district court in this case correctly rejected the interpretation of the Transmit Clause reflected in Cablevision and Aereo, explaining that: “[I]t is the public performance of the copyrighted work with which the Copyright Act, by its express language, is concerned.” Op. 6. The dissenting judge in Aereo likewise recognized that the relevant inquiry (as Congress intended) is whether the retransmission service makes the same “performance of a work” available to the public, not whether one distinct transmission is made available to the public. See

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Aereo, 2013 WL 1285591, at *19, 22 (Chin, J. dissenting). The district court reasoned: 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. Op. 4 (emphasis in original). The district court also discussed the Supreme Court authority and legislative history upon which the Cablevision court had relied. And it noted that both focused upon the performance of the work and not (as had Cablevision) on the “performance of the performance.” Id. (citing Buck v. JewellLaSalle Realty Co., 283 U.S. 191, 196 (1931) and 1976 House Report). The district court’s decision to reject the interpretation by the courts in Cablevision and Aereo finds considerable support. See Paul Goldstein, supra; Jane Ginsburg, Recent Developments in U.S. Copyright Law, supra; Jeffrey Malkan, supra; Jane Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cable)Vision, The Media Institute (Apr. 23, 2013) (“That’s why Cablevision is wrong, that’s why Aereo is wrong, and the prospects for business models are terrifying, or terrific, depending on whether you own a copyright, or just make money off of someone else’s.”), available at

http://www.mediainstitute.org/IPI/2013/042313.php; American Bar Association Section of Intellectual Property Law Past Action Book at 72-73 (2011-12)

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(disapproving of Cablevision’s public performance holding); Soc’y of Composers, Authors & Music Publishers of Canada, SCC Case No 33922, 2012 SCC 35, [2012] 2 S.C.R. 283 (Canada Supreme Ct. July 12, 2012) (refusing to follow Cablevision because of differences in the laws but also aptly noting that: “Focusing on each individual transmission loses sight of the true character of the communication activity in question and makes copyright protection dependent on technicalities of the alleged infringer’s chosen method of operation. Such an approach does not allow for principled copyright protection. Instead, it is

necessary to consider the broader context to determine whether a given point-topoint transmission engages the exclusive right to communicate to the public. This is the only way to ensure that form does not prevail over substance.”), available at http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/9995/index.do?r=AAAAAQALMjAxMiBTQ0MgMzUAAAAAAAA B. 2. The Interpretation Of The Transmit Clause Reflected In Cablevision And Aereo Is Inconsistent With Established Transmit Clause Jurisprudence.

The focus of the Cablevision and Aereo decisions on each transmission also is inconsistent with case law. This Court and others have routinely concluded that services make public performances of a work even where they (like Aereokiller) make separate on-demand transmissions to individual subscribers. See, e.g.,

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Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278, 282 n.7 (9th Cir. 1989) (Transmit Clause applies to a service that transmits movies on-demand to individual guests in their hotel rooms); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) (same); Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (3rd Cir. 1984) (ondemand transmissions of videos to private viewing booths occupied by one to four persons fall within the Transmit Clause); Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1010-11 (C.D. Cal. 2011) (transmission of motion pictures over the Internet to subscribers on-demand constitutes public performances); Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 192 F. Supp. 2d 321, 332 (D.N.J. 2002) (on-demand transmissions of motion picture clips over the Internet constitutes public performances), aff’d on other grounds, 342 F.3d 191 (3d Cir. 2003). Aereokiller, which asserts that it streams programming to its subscribers from individual copies unique to each user, seeks to dismiss the above authority on the ground that the services in those cases made each transmission from a common copy. See AK Br. 19, 25-29. With the exception of Redd Horne and WTV, however, none of these decisions even mentions whether the transmissions were made from multiple copies or a common copy. And none considers whether the

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use of multiple copies is legally relevant to the question of whether the service engages in public performances. The courts in Redd Horne and WTV concluded only that the use of a single copy to support the transmissions is a public performance. Courts in the Second Circuit treat that conclusion as a negative pregnant, i.e., by assuming it means that the use of multiple unique copies precludes a public performance. No court

outside the Second Circuit has interpreted Redd Horne or WTV that way. Aereokiller is simply wrong when it says that, in the Ninth Circuit, “the uniqueness of the copy determines whether a performance is transmitted publicly or privately.” AK Br. 25. Moreover, there is nothing in the language or legislative history of the Transmit Clause that makes any reference to the number of copies used to support the transmissions. The district court correctly concluded that the “focus on the uniqueness of the individual copy from which a transmission is made is not commanded by the statute.” Op. 5. Accordingly, it does not “matter whether the ‘performance’ originates from a single source copy repeatedly transmitted to individual members of the public ‘in different places at different times,’ or from multiple copies each corresponding to a particular place and/or time.” Jane

Ginsburg, supra, at 26; see also American Bar Association Section of Intellectual Property Law Past Action Book at 72-73 (2011-12) (disapproving of Cablevision

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and explaining that “a party may not avoid direct liability for unauthorized public performances by using as the source thereof separate copies of the work that members of the public may have requested for such transmission”). 3.

Cablevision’s And Aereo’s Misreading Of The Transmit
Clause Is Not Necessary To Preserve Private Performances.

Aereokiller contends that the district court’s reading of the Transmit Clause would lead to “untenable results” and “effectively eliminates an individual’s right to privately perform broadcast content.” AK Br. 2, 19. That is the same argument that led the Cablevision Court to mistakenly focus on each individual transmission rather than the performance of the work. The argument is simply not correct and does not excuse a misreading of the Transmit Clause. Aereokiller claims, for example, that a “hapless customer” would be liable for making an unauthorized public performance where she recorded a program and then transmitted that program to other portions of her home. See also Cablevision, 536 F.3d at 136 (citing same example). The district court, however, specifically referenced that example and left no doubt that it does not involve a public performance: There is nothing public about such a performance. By contrast, this case involves a commercial service transmitting copyrighted content to thousands, and potentially millions, of people.

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Op. 5 n.12. In such a case, the homeowner is not transmitting the broadcast (performance) of a copyrighted work to the public, as Aereokiller does. Nothing in the district court’s interpretation of the Transmit Clause would result in that “hapless consumer” incurring copyright liability for public performances. Aereokiller also says that the district court’s rejection of Cablevision would mean that “a consumer who accesses a legally purchased and stored a [sic] Rolling Stones album on Apple’s iCloud service would violate the Transmit Clause upon playing that album on various devices.” AK Br. 20. Apple, of course, obtains licenses from record companies to provide that service. See Greg Sandoval,

Apple’s iCloud Launch Portends Music, CNET News (May 31, 2011), available at http://news.cnet.com/8301-31001_3-20067487-261.html; ER 14, 20, 1750. In any event, nothing in the district court’s decision -- or its interpretation of the Transmit Clause -- suggests that an individual consumer who utilizes the iCloud service to access her music engages in transmissions to the public. Aereokiller and its amici further suggest that, under the district court’s interpretation, one would aggregate all transmissions of a program no matter by whom they are made. See also Cablevision, 536 F.3d at 136 (incorrectly

aggregating transmissions of multiple cable companies). Again, that is wrong. The correct interpretation of the Transmit Clause, as reflected in the district court’s opinion, does not require aggregation of Aereokiller’s retransmissions with that of

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any other party. Rather, only the transmissions of the party whose conduct is at issue are aggregated; they are not combined with those of an unrelated party. The district court focused solely (and properly) on the fact that Aereokiller itself is retransmitting the same broadcast of a program to its thousands of subscribers; these retransmissions are aggregated under the correct reading of the Transmit Clause. 4. This Court Should Not Apply Cablevision To Immunize Aereokiller From Copyright Liability Contrary To Congressional Intent.

Separate and apart from Cablevision’s fundamental misinterpretation of the Transmit Clause, Aereokiller (and Aereo) involve very different services from Cablevision’s Remote Storage DVR. To the extent that a divided panel of the Second Circuit applied Cablevision to exempt the Aereo Internet retransmission service from public performance liability, it was wrong to do so and the Aereo decision should not be followed in this case. As Judge Chin correctly explained in his dissent, there are “critical differences between Cablevision and [Aereo].” Aereo, 2013 WL 1285591, at *15; see also id. at *20-21 (explaining that “Aereo’s system is factually distinct from Cablevision’s RS-DVR” and “these differences undermine the applicability of Cablevision to Aereo’s system”). The same is true of Aereokiller.

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Cablevision did not consider, much less disturb, the well-settled principle that commercial broadcast retransmission services (such as Aereokiller) must either qualify for a compulsory license or obtain copyright owner consent. Cablevision dealt with an entirely different service. Cablevision obtained

“numerous” licenses for real-time transmissions of programming. See 536 F.3d at 123. The issue was whether Cablevision required additional licenses for

subsequent transmissions of the same programming recorded at the direction of its subscribers. In stark contrast, this case involves a free-riding Internet service that has not obtained any license to retransmit copyrighted programming. The court in Cablevision “emphasize[d]” that it did not intend to exempt content delivery networks from copyright liability simply because they (like Aereo and Aereokiller) associate unique copies of copyrighted works with each of their subscribers. See 536 F.3d at 139. The Government (through then-Solicitor

General Elena Kagan and at the invitation of the Supreme Court) recommended that the Court not review the Cablevision decision because there was no circuit split and because the Cablevision court limited its decision to the facts of the case: “[A]lthough scattered language in the Second Circuit’s [Cablevision] decision could be read to endorse overly broad, and incorrect, propositions about the Copyright Act, the court of appeals was careful to tie its actual holdings to the facts of this case.”). Brief of the United States as Amicus Curiae, Cable News Network,

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Inc. v. CSC Holdings, Inc., No. 08-448, 2009 WL 1511740, at 6 (U.S. May 29, 2009). The Government specifically noted that “while some aspects of the Second Circuit’s reasoning [in Cablevision] on the public-performance issue are problematic,” the decision “should not be understood to reach . . . other circumstances beyond those presented in this case.” Id. at 21, 22. The

Government admonished that Cablevision should not be construed to “undermine copyright protection in circumstances far beyond those presented [in that case], including with respect to VOD [Video-on-Demand] services or situations in which a party streams copyrighted material on an individualized basis over the Internet.” Id. at 20-21. Nonetheless the panel majority in Aereo applied Cablevision to a very different service -- a broadcast retransmission service -- without making any effort to reconcile its rote adoption of Cablevision’s flawed statutory interpretation with Congress’s clear intent to encompass broadcast retransmissions within the Transmit Clause. Furthermore, under Cablevision, the central inquiry (incorrectly) concerned the “potential audience” of each transmission. See 536 F.3d at 135, 137; supra pages 32-33. Because Cablevision owns and manages the facilities over which it makes RS-DVR transmissions, Cablevision can ensure that each playback

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transmission of a stored program goes directly to the home of the subscriber who made the copy of that program and requested its playback. See 536 F.3d at 124 (subscribers “receive playback of those programs through their home television sets”); id. at 126 (each playback transmission is “uniquely associated with one customer’s set-top box and intended for that customer’s exclusive viewing in his or her home”) (citation and internal quotation marks omitted). Accordingly, the only person “capable of receiving” (the “potential audience” for) each RS-DVR transmission from Cablevision was the subscriber who requested the copy used to make that retransmission. See id. at 135 (“only one subscriber is capable of receiving any given RS-DVR transmission”). That is not the case with Aereokiller. Aereokiller does not make

retransmissions over its own closed and managed facilities, as Cablevision does; nor does it confine those retransmissions to individual subscribers’ homes. Aereokiller’s retransmissions travel via the Internet (over which it has no control) to mobile devices that may be located anywhere, including public places such as malls, airports, and stadiums.3 Anyone with the relevant password may request and receive each retransmission; and anyone with access to an Internet-connected
3

Under Section 101 of the Copyright Act, Aereokiller also publicly performs a work if it transmits a performance of that work to “a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered . . . .” 17 U.S.C. § 101. Aereokiller does precisely that.
(footnote continued on next page)

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device may view the program being retransmitted. See Jenna Wortham, No TV? No Subscription? No Problem, N.Y. Times (Apr. 6, 2013) (explaining that sharing passwords to gain access to subscription streaming services “appears increasingly prevalent” and “on the rise”), available at

http://www.nytimes.com/2013/04/07/business/streaming-sites-and-the-rise-ofshared-accounts.html?pagewanted=all&_r=0. Thus, the “potential audience” for, or the persons “capable of receiving,” each Aereokiller retransmission is not just the one subscriber who receives RS-DVR retransmissions. The Aereo court failed to consider the substantial differences between distributing programming over a closed and managed facility as in Cablevision and retransmitting programming over the Internet. C. None Of The Other Arguments Advanced By Aereokiller And Its Amici Supports The Conclusion That Aereokiller May Lawfully Provide An Unlicensed Broadcast Retransmission Service. 1. Congress Rejected The Notion That A Broadcast Retransmission Service Like Aereokiller Should Be Exempt From Copyright Liability Because It Provides Subscribers With Television Programming They Can Receive On Their Own.

Aereokiller claims that it simply facilitates its subscribers’ receipt of the same programming they could lawfully receive with “legal home equipment.”

(footnote continued from previous page)

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AK Br. 20; see id. at 10. The same argument, however, may be made about traditional cable systems and other broadcast retransmission services. They, too, provide subscribers with access to programming the subscribers can lawfully receive on their own. That, in fact, was the rationale underlying the Supreme Court’s decisions in Fortnightly and Teleprompter, which held that cable systems were not subject to liability under the 1909 Copyright Act. See Fortnightly, 392 U.S. at 399-400; Teleprompter, 415 U.S. at 408. Congress expressly rejected that approach in the 1976 Copyright Act. The Act subjects broadcast retransmission services to

copyright liability even though they provide the same programming subscribers can receive on their own. Congress concluded that because such systems market and profit from a commercial service based upon the exploitation of copyrighted works created by others, imposing copyright liability upon those services is appropriate. The same conclusion applies equally to Aereokiller and also

underscores the infirmity of the Cablevision and Aereo decisions. As the district court below correctly noted, the courts in Cablevision and Aereo “reached their results by reasoning that the defendant was providing a service equivalent to what individuals could do for themselves. . . . But Congress has rejected that mode of reasoning in this context.” Op. 5-6 (citations and footnote omitted). There is nothing in the legislative history of the 1976 Act to suggest that Congress would

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have viewed the issues raised by Teleprompter and Fortnightly any differently had the services in those cases utilized thousands of antennas attached to a tower on a hill rather than a single community antenna.4 Furthermore, nothing in Aereokiller’s legal theory is dependent upon whether its subscribers are authorized to receive the retransmitted programming on their own. For example, under its theory, Aereokiller would not engage in an infringing public performance if it retransmitted non-broadcast programming, such as that provided by HBO, ESPN or TNT. In such a case, Aereokiller would claim it is simply providing technology to permit private performances by its subscribers. Aereokiller’s theory, if adopted, would effectively gut the Transmit Clause (and its delineation of the public performance right) beyond recognition. 2. As This Court’s Decision In Professional Real Estate Investors Illustrates, Aereokiller Cannot Avoid Copyright Liability For Unlicensed Public Performances On The Ground That It Is Merely “Providing Technology.”

Aereokiller and its amici argue that Aereokiller simply “provides technology that enables consumers to make private performances” (AK Br. 20) and that this

Amici also argue that Congress could not have enacted the Transmit Clause in response to Fortnightly and Teleprompter because it drafted that provision in 1965 prior to the Supreme Court issuing those decisions in 1968 and 1974. This argument ignores the legislative history of the Transmit Clause. Congress had been dealing with the “difficult problem” of determining copyright liability of broadcast retransmission services such as cable systems “since 1965,” 1976 Report at 89, and Congress left no doubt that the basis for the Fortnightly and Teleprompter decisions was “completely overturned” in the 1976 Act. See id. at 87.

4

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Court’s decision in Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278, 282 n.7 (9th Cir. 1989) (“PREI”), stands for the proposition that a “hotel was not a ‘retransmitter’ because the hotel was merely providing the consumers equipment that allowed [its guests] to watch the videos in private.” AK Br. 27 n.12. Neither argument is correct. First, all broadcast retransmission services (cable, satellite, and Internet) could argue that they do no more than provide equipment that allows consumers to watch television programming in private and, therefore, that none of them makes public performances. Congress, however, squarely rejected that view when it enacted the 1976 Act. For example, the management of a hotel or apartment building may erect an antenna to receive over-the-air broadcast television programming and then string wires throughout the building. The building

occupants may utilize those facilities to view the available programming. But it is the management that erected and operates those facilities (not the occupants) that engages in public performances of the programming. Otherwise there would have been no need for Congress to exempt such management from copyright liability, provided it does not make any direct charge to occupants to receive the broadcast programming. See 17 U.S.C. § 111(a)(1). Likewise, Congress exempted from copyright liability passive carriers (such as telephone companies) “whose activities with respect to the secondary

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transmission consist solely of providing wires, cables, or other communications channels for the use of others . . . .” Id. § 111(a)(3). Congress enacted this

“passive carrier exemption” at the urging of AT&T, which was concerned that it could incur copyright liability for allowing third parties to use its facilities to transmit copyrighted works. See Hearings Before the Subcomm. On Courts, Civil Liberties, and the Admin. Of Justice of the House Comm. On the Judiciary, 96th Cong., 1st Sess. 32 (1979) (testimony of Barbara Ringer, Register of Copyrights). There would have been no need for the “passive carrier” exemption had Congress thought that such carriers do not engage in public performances because they do no more than provide the technological means for retransmitting programming. Second, the PREI decision confirms the fallacy of Aereokiller’s position in this case. The Court in PREI made clear that there is a significant difference between simply providing equipment that a subscriber uses at the location where he or she views the programming, and doing what Aereokiller does -- sending that programming on-demand from a central location to the subscriber at a distant location. The latter comes within the Transmit Clause; the former does not. The PREI Court determined that hotel management does not fall within the Transmit Clause when it only installs in guest rooms equipment that allows the guests to play videocassettes they obtained from management. See 866 F.2d at 282 (“While [management] . . . provided the videodisc player, television screens, guest

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rooms, and makes videodiscs available in the lobby, we are not persuaded that any transmission of the kind contemplated by the statute occurs. If any transmission and reception occurs, it does so entirely within the guest room; it is certainly not received beyond the place from which it is sent.”). Thus, the plaintiff content owners were unsuccessful in PREI because that case involved no transmission whatsoever -- wholly unlike this case where there is no dispute that transmissions are made. By contrast, the Court in PREI determined that a service (called Spectradyne) that transmitted movies to individual hotel guest rooms on-demand, on a pay-per-view basis, does make public performances: Spectradyne's closed circuit system falls squarely within the transmit clause of the Act. It uses wires to transmit a signal, employs a central transmission device, and the signal is received at places beyond the place from which it is sent. Id. at 282 n.7. As the Court in PREI noted, “[a] plain reading of the transmit clause indicates that its purpose is to prohibit transmissions and other forms of broadcasting from one place to another without the copyright owners permission.” Id. at 282. As such, because Aereokiller, like Spectradyne, “uses wire to transmit a signal, employs a central transmission device, and the signal is received at places beyond the place from which it was sent,” PREI provides additional support for the district court’s conclusion that Aereokiller is engaged in infringing activity.

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3.

Nothing In The Sony Decision Supports Exempting Aereokiller Or Any Other Broadcast Retransmission Service From Copyright Liability.

Aereokiller and its amici rely upon Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (“Sony”). But this appeal involves only

Aereokiller’s direct liability for unauthorized public performances (17 U.S.C. § 106(4)), not secondary liability for unauthorized reproductions (id. § 106(1)). The Sony decision is relevant only as a defense to claims for secondary infringement of the reproduction right and has no relevance to this case. Aereokiller claims that it merely provides its subscribers with access to broadcast programming they may record for time-shifting purposes, consistent with Sony. AK Br. 16-17; see id. at 22 (“Aereokiller’s technology performs

exactly the same function as the Betamax in Sony . . . .”) But traditional cable systems (such as Time Warner and Comcast) also provide their subscribers with programming the subscribers may record under Sony. It cannot reasonably be suggested, after the 1976 amendment of the Copyright Act, that traditional cable systems may forgo the necessary public performance licenses to retransmit broadcast programming by invoking Sony. Sony does not afford Aereokiller or any other broadcast retransmission service an exemption from the public performance right.

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Aereokiller’s reliance upon Sony’s fair use analysis (AK Br. 22) is similarly misplaced. The Sony Court determined only that consumers have a fair use

defense to copyright infringement when they record broadcast television programming, under certain circumstances, for non-commercial time-shifting. The Court in Sony did not say that commercial services, which would include Aereokiller, have any fair use defense for providing a broadcast retransmission service. See Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) (concluding that unauthorized retransmission of radio broadcast programming ondemand to paying subscribers is not fair use). Indeed, courts have “properly rejected attempts by for-profit users to stand in the shoes of their customers making nonprofit or noncommercial uses.” Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1389 (6th Cir. 1996) (en banc) (citation omitted), cert. denied, 520 U.S. 1156 (1997); accord Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 994 (9th Cir. 1998) (“[T]he question of whether defendants’ copying and transmission of the works constitutes fair use is distinct from whether their subscribers’ broadcasts of the works are fair use.”); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 582-83 (6th Cir. 2007) (commercial karaoke CD maker could not stand in the shoes of its customers or benefit from fair use arguments they might have); Video Pipeline, 192 F. Supp. 2d at 334 (defendant “should not be able to hide behind the lawful actions and

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privileges extended to its retail customers who have abided by the Copyright Act”); Infinity, 150 F.3d at 111-12 (same). The case against Aereokiller has nothing to do with the ability of individual subscribers to personally record and play back broadcast television programming as permitted by Sony. Rather the only issue on appeal is whether commercial services such as Aereokiller may retransmit that programming to subscribers over the Internet for profit without incurring any copyright liability. Congress answered that question in the negative when, in the 1976 Act, it chose to impose copyright liability upon unlicensed broadcast retransmission services. 4. The Dish Court’s Volitional Analysis Has No Applicability To This Case.

Aereokiller also misreads Fox Broadcasting Co. v. Dish Network, LLC, ___ F. Supp. 2d ___, 2012 WL 5938563 (C.D. Cal. Nov. 7, 2012) (“Dish”), which is on appeal to this Court. That case involves a satellite carrier (DISH) which, unlike Aereokiller, secured both negotiated and statutory licenses to provide broadcast television programming to its subscribers on a live basis. Plaintiffs in that case allege that DISH both breached its licensing agreements and engaged in copyright infringement when it offered its subscribers certain services that automatically records all of the four major networks’ prime time programming and skips the commercials that accompany those programs.

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According to Aereokiller, the court in Dish “found that the copy that Dish creates falls under the fair use exception . . . .” AK Br. 24. That is simply wrong. The Dish court found precisely the opposite, concluding that those “copies are not a fair use and are an infringement upon Fox’s exclusive reproduction right.” Dish, 2012 WL 5938563, at *14. Aereokiller also says (without citation) that the court “found the transmission by Dish’s technology is a private transmission.” AK Br. 24. Nowhere does the court even address the public performance right or the Transmit Clause; indeed, the only copyright claims in that case involved reproduction, 17 U.S.C. § 106(1), and distribution, id. § 106(3), not public performance, id. § 106(4). Dish, 2012 WL 5938563, at *7. The court only held that the dissemination of a copy within a single household does not come within the public distribution right. Id. at *15. Aereokiller also contends that the court in Dish “relied on Cablevision.” AK Br. 24. But the Dish court did not even mention, let alone rely upon, the Cablevision Court’s analysis of the Transmit Clause, which is at issue here. Indeed, no court outside the Second Circuit has done so. Rather, the court in Dish relied upon the Cablevision Court’s analysis of a separate issue involving the reproduction right -- whether Cablevision or its subscribers made certain unlicensed copies of programming, an issue that in the Cablevision court’s opinion, turned upon whether Cablevision had engaged in sufficient “volitional conduct.”

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Dish, 2012 WL 5938563, at *8-9. But see WTV, 824 F. Supp. 2d at 1011 n.7 (rejecting the Cablevision volitional conduct approach as inconsistent with the Copyright Act’s adoption of strict liability); Arista Records LLC v. Myxer Inc., No. CV 08-3935, 2011 U.S. Dist. LEXIS 109668, at *47-49 (C.D. Cal. Apr. 1, 2011) (same). Regardless of whether Cablevision’s volitional analysis has any relevance in the context of reproduction and distribution claims, not even the court in Cablevision was willing to apply that analysis in the context of public performance claims at issue here. Although ignored by Aereokiller, the court in Cablevision explicitly refused to consider the applicability of the volitional conduct analysis in the context of public performance claims. See Cablevision, 536 F.3d at 134

(“[W]e note that our conclusion in Part II 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.”). The Cablevision Court’s reluctance to extend its volitional conduct analysis to cases involving public performance is understandable. Such an extension would support the view that no one is liable for copyright infringement whenever a consumer pushes a button requesting a service to transmit or retransmit a program

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to that subscriber (even where the service had no license to do so). The consumer would argue that she is not liable because viewing the program without making a copy does not constitute a violation of the Copyright Act. The service then would argue that it does not engage in direct infringement because it was not “doing” the transmission; and it would not engage in secondary infringement because there was no direct infringement by the consumer. II. The District Court Correctly Concluded That Each Of The Other Relevant Factors Support A Preliminary Injunction. For the reasons set forth in the FOX Br. 50-61, which are incorporated herein by reference (FRAP 28(i)), the district court correctly found that (a) Aereokiller’s unlicensed Internet retransmission service would likely cause irreparable harm to Copyright Owners; (b) that harm outweighs any harm to Aereokiller; and (c) an injunction would serve the public interest. III. The District Court Should Not Have Limited Its Injunction To The Geographic Boundaries Of The Ninth Circuit. Section 502(a) of the Copyright Act, 17 U.S.C. § 502(a), provides that a court “may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” Section 502(b) of the Act, 17 U.S.C. § 502(b), provides that any such injunction “shall be operative throughout the United States” and “shall be enforceable” by any U.S. court with personal jurisdiction. (Emphasis added). Congress intended that “a copyright

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owner who has obtained an injunction in one State will be able to enforce it against a defendant located anywhere else in the United States.” 1976 Report at 160 (emphasis added); accord S. Rep. No. 94-473 at 142 (1975). The district court’s decision sua sponte to enjoin Aereokiller’s infringing service solely within the geographic boundaries of the Ninth Circuit -- thereby requiring Copyright Owners to initiate separate actions in each of the several other circuits where Aereokiller is currently rebroadcasting Copyright Owner’s television programs, and causing that same irreparable harm. This limitation is inconsistent with both Section 502(a) (because it does not prevent or restrain Aereokiller’s ongoing infringement outside the Ninth Circuit) and Section 502(b) (because it does not extend nationwide). This Court should therefore reverse the geographic limitation and impose the nationwide injunction mandated by the statute. At the most fundamental level, the district court’s decision to limit its preliminary injunction to the geographic boundaries of the Ninth Circuit should be reversed because it does not afford Copyright Owners with complete relief from the infringement the court found they are likely to succeed in proving, Op. 3-6, or the irreparable harm that it found they are likely to suffer as a result of Aereokiller operating its broadcast retransmission system nationwide. Id. at 6-7. The very purpose of copyright injunctions is to effectively “prevent or restrain [further]

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infringement[,]” 17 U.S.C. § 502(a), without the need for duplicative litigation. In a case such as this one, where “liability has been determined adversely to the infringer, there has been a history of continuing infringement and a significant threat of future infringement remains,” Walt Disney Co. v. Powell, 897 F.2d 565, 568 (D.C. Cir. 1990), broad nationwide injunctive relief is particularly justified to provide the copyright owners with sufficient protection. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011). The record below reflects Aereokiller’s admissions that: (a) it operates its infringing Internet television retransmission service in almost every federal judicial circuit in the United States; (b) it intends to continue to operate its service everywhere it has not been enjoined; and (c) it plans to expand its operations. ER 37-38 (Tr.), 64 (Tr.), 333-35, 1820-21, 1823, 2576-77, 2593-98, 2608-09. In the face of these admissions, a nationwide injunction is necessary to protect Copyright Owners from adjudicated infringement that Aereokiller admittedly continues outside the Ninth Circuit. Copyright Owners should not be required to file multiple actions in courts throughout the country to obtain the injunctive relief that, under the mandate of Section 502(b) of the Copyright Act, should have been awarded based on the finding of infringement in this case. See Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“[O]ur

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refusal to sustain a broad injunction is likely merely to generate a flood of duplicative litigation.”). United States v. AMC Entm 't, Inc., 549 F.3d 760 (9th Cir. 2008) (“AMC”), the only case cited by the district court in support of its decision to limit the scope of the injunction, see Op. 8, does not compel a different conclusion. In AMC, a district court issued a nationwide injunction requiring a movie theater chain to provide disabled moviegoers various movie viewing angles available to nondisabled patrons. AMC, 549 F.3d at 762, 768. The AMC district court based its ruling on the Ninth Circuit’s interpretation of guidelines pertaining to the Americans with Disabilities Act (“ADA”); that interpretation directly conflicted with the Fifth Circuit’s interpretation of the same guidelines. Id. at 766-67. On appeal, a divided panel of this Court concluded that, as a matter of comity, an injunction issued by the district court should not extend to the Fifth Circuit because the Fifth Circuit had interpreted the applicable law differently from the Ninth Circuit. Id. at 762; but see id. at 776 (Wardlaw, J., dissenting in part) (explaining that the relevant issue is not whether another circuit has adopted a different interpretation of the relevant law, but whether “compliance with the nationwide injunction would require [the defendant] to act in conflict with any law, obligation, or requirement” in that circuit).

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AMC was not decided under the Copyright Act and does not support the district court’s determination in this case that the injunction against Aereokiller’s copyright infringement should be confined to the Ninth Circuit. AMC involved a dispute under the ADA. There is no provision in the ADA comparable to

Section 502(b) of the Copyright Act, which mandates that an injunction be “operative” nationwide and “enforceable” by any court with personal jurisdiction over the defendant. The AMC Court noted only that a court “in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction.’” 549 F.3d at 770 (emphasis added) (citation omitted). Whatever the law may be under the ADA, “principles of comity” may not override the plain language of Section 502(b) of the Copyright Act, which mandates nationwide injunctive relief. Yet, even if this Court were to take a more selective approach to the scope of the injunction in this case, AMC would not counsel exclusion of any other circuit beyond the Second Circuit. In AMC, the Court determined that the injunction at issue should have excluded the Fifth Circuit because the Fifth Circuit had actually reached a contrary interpretation of the applicable law; the Court did not rule that the injunction should have excluded other circuits that had not addressed the same issue: Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that - 60 -

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geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. Id. at 773 (emphasis added). No court outside the Second Circuit, other than the court below, has “spoken to the issue” of whether a service such as Aereokiller’s is infringing under the Transmit Clause; and there are no “established judicial pronouncements” outside the Second Circuit suggesting that Aereokiller’s service is non-infringing. Under these circumstances, the AMC decision would, at most, support excluding only the Second Circuit from the scope of the injunction against Aereokiller. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011) (upholding nationwide copyright injunction and distinguishing AMC as not compelling consideration of comity concerns in sister circuits that have not decided the legal issue that supports injunctive relief). Here, the district court limited its injunction to the Ninth Circuit simply because it thought that other courts “might adopt” Cablevision when presented with the choice and copyright owners “do not appear” to have sought “rulings contrary to Cablevision’s public performance analysis in the other circuits.” Op. 8. The district court concluded that: “In those circumstances, [it] would not assume that the other Circuits would agree with” its decision rather than Cablevision. Id. As this Court has made clear, the mere possibility of a different interpretation does not provide a proper basis for precluding application of the injunction -- at a - 61 -

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minimum -- in the ten circuits that have not interpreted the Transmit Clause as the Second Circuit has. See Apple, 658 F.3d at 1161. Again, however, submit that the statutory mandate of Section 502(b) compels nationwide injunctive relief against Aereokiller. 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. To provide Copyright Owners complete relief against Aereokiller’s infringing conduct, the injunction should be expanded beyond the Ninth Circuit and made nationwide and enforceable by any court with personal jurisdiction over Aereokiller, as required by 17 U.S.C. § 502(b). Respectfully submitted, Dated: April 26, 2013 ARNOLD & PORTER LLP

By: s/ John C. Ulin John C. Ulin Attorneys for NBCUniversal AppelleesCross-Appellants.

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STATEMENT REQUESTING ORAL ARGUMENT Pursuant to Federal Rule of Appellate Procedure 34(a), Copyright Owners request that oral argument of this appear be permitted. Oral argument will assist this Court in deciding the appeal. Dated: April 26, 2013 Respectfully submitted, ARNOLD & PORTER LLP

By: s/ John C. Ulin John C. Ulin Attorneys for NBCUniversal AppelleesCross-Appellants.

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STATEMENT OF RELATED CASES Other than the four consolidated appeals and cross-appeals -- Case 1355156, 13-55157, 13-55226, and 13-55228 -- counsel for Copyright Owners are not aware of any other related cases under Circuit Rule 28-2.6. Dated: April 26, 2013 ARNOLD & PORTER LLP

By: s/ John C. Ulin John C. Ulin Attorneys for NBCUniversal AppelleesCross-Appellants.

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), as modified by Fed. R. App. P. 28.1(e)(2)(A) because the brief contains 13,897 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface and type style

requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6), respectively, because this brief has been prepared in a proportionately spaced typeface using Microsoft Word 2007 in Times New Roman 14-point font. Dated: April 26, 2013 ARNOLD & PORTER LLP

By: s/ John C. Ulin John C. Ulin Attorneys for NBCUniversal Appellees-Cross-Appellants.

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CERTIFICATE OF SERVICE I hereby certify that on April 26, 2013 I electronically filed the foregoing Appellees/Cross-Appellants’ Principal Brief On Cross-Appeal And Response To Appellants’ Principal Brief On Appeals with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. 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.

Dated:

April 26, 2013

s/ John C. Ulin John C. Ulin Attorney for NBCUniversal Appellees-Cross-Appellants

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