Case 1:13-cv-11649-NMG Document 65 Filed 09/06/13 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

HEARST STATIONS INC., d/b/a WCVB-TV, Plaintiff, C.A. No. 1:13-CV-11649-NMG v. AEREO, INC., Defendant.

PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY On July 9, 2013, the plaintiff, Hearst Stations Inc., d/b/a WCVB-TV (“WCVB”), filed a Motion for Preliminary Injunction (Dkt. No. 4) seeking to enjoin the defendant, Aereo, Inc. (“Aereo”), from infringing WCVB’s copyrights (the “PI Motion”). On August 7, 2013, Aereo filed its Opposition (Dkt. No. 41), and on August 23, 2013, WCVB filed its Reply (Dkt. No. 62). Oral argument is scheduled for September 18, 2013. Since the time of those filings, Judge Collyer of the District Court for the District of Columbia issued an injunction in Fox Television Stations, Inc. v. FilmOn X LLC, Civil Action No. 13-758 (D.D.C.) (“FilmOn X”). Because that decision directly addresses the issues presently before this Court, a copy of that decision is provided with this Notice and is attached as Exhibit A. The FilmOn X decision is relevant to this Court’s analysis because: • Although the defendant in that case is different, the Court expressly assumed that the services and technology used by that defendant were, for all relevant purposes, the same as Aereo’s services and technology. See FilmOn X at 4–5 & n.4–n.6. The Court concluded that, under the unambiguous language of the Copyright Act, and further supported by the legislative history, the defendant violated the

Case 1:13-cv-11649-NMG Document 65 Filed 09/06/13 Page 2 of 4

plaintiff broadcasters’ public performance rights through the provision of those services and that technology. See id. at 24–28. • The Court expressly rejected the argument, also asserted by Aereo here, that the use of multiple, individual transmissions rendered performances private. See id. at 27. The Court expressly rejected the Second Circuit’s interpretation of the Transmit Clause of the Copyright Act for the reasons set forth in Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012), Judge Chin’s dissent in the Second Circuit, and WCVB’s PI Motion. See id. at 25 n.11, 28 n.12. After finding in the plaintiffs’ favor on irreparable harm, the balancing of the harms and the public interest, the Court issued a nationwide preliminary injunction (except in the Second Circuit) 1 prohibiting the defendant from retransmitting any of the plaintiffs’ programs without authorization. See id. at 31–34. CONCLUSION The plaintiff, Hearst Stations Inc., d/b/a WCVB-TV, respectfully submits, for the Court’s consideration of the pending PI Motion, the decision from the District Court for the District of Columbia issued in Fox Television Stations, Inc. v. FilmOn X LLC, Civil Action No. 13-758 (D.D.C.), attached as Exhibit A.

The Court excluded the Second Circuit from the injunction because of the Second Circuit decision in the pending Southern District of New York cases against Aereo. See id. at 34.

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Case 1:13-cv-11649-NMG Document 65 Filed 09/06/13 Page 3 of 4

Respectfully submitted, HEARST STATIONS INC., d/b/a WCVB-TV By its attorneys, /s/ James D. Smeallie James D. Smeallie (BBO #467380) Joshua C. Krumholz (BBO #552573) Brian G. Leary (BBO #548386) Elizabeth M. Mitchell (BBO #638146) Holland & Knight LLP 10 St. James Avenue Boston, MA 02116 Telephone: (617) 523-2700 Facsimile: (617) 523-6850 Email: jd.smeallie@hklaw.com joshua.krumholz@hklaw.com brian.leary@hklaw.com elizabeth.mitchell@hklaw.com Dated: September 6, 2013

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Case 1:13-cv-11649-NMG Document 65 Filed 09/06/13 Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing on September 6, 2013.

/s/ James D. Smeallie James D. Smeallie

#25686353_v3

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