Fox Television Stations, Inc. v. Barrydriller Content Systems, PLC

915 F. Supp. 2d 1138, 41 Media L. Rep. (BNA) 1515, 108 U.S.P.Q. 2d (BNA) 1503, 2012 U.S. Dist. LEXIS 184209, 2012 WL 6784498
CourtDistrict Court, C.D. California
DecidedDecember 27, 2012
DocketCase No. CV 12-6921-GW(JCx)
StatusPublished
Cited by14 cases

This text of 915 F. Supp. 2d 1138 (Fox Television Stations, Inc. v. Barrydriller Content Systems, PLC) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox Television Stations, Inc. v. Barrydriller Content Systems, PLC, 915 F. Supp. 2d 1138, 41 Media L. Rep. (BNA) 1515, 108 U.S.P.Q. 2d (BNA) 1503, 2012 U.S. Dist. LEXIS 184209, 2012 WL 6784498 (C.D. Cal. 2012).

Opinion

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

GEORGE H. WU, District Judge.

Court hears oral argument. The Tentative Final Ruling circulated and attached hereto, is adopted as the Court’s [1140]*1140final ruling. The Court GRANTS IN PART/DENIES IN PART Plaintiffs’ motion for preliminary injunction. Court signs the proposed order.

The Court accepts the following stipulation placed on the record:

1. Within two weeks of today’s date, Plaintiffs shall receive a representation or representations under oath from an officer competent to speak for both Aereokiller and FilmOn with respect to the mini antennae for each applicable local station are located in the locality for that local station defined as the Nielson DMA for each particular local station.
2. All statements in slide number 5 of the technology tutorial presented by defendants entitled Aereokiller’s Mini Antenna Technology (attached as Exhibit A) in fact occur completely within the locality of each applicable local station that is retransmitted defined as the local DMA. This includes the web server, antenna router, antenna tuner, server, Aereokiller antennas, the encoder, the DVR folders, and the delivery or sometimes called the streaming server.
3. None of these steps are accomplished by backhaul or any other method whereby the signal comes through the Ninth Circuit and goes back out to these local DMAs.

I. Introduction

Plaintiffs Fox Television Stations, Inc., Twentieth Century Fox Film Corp., and Fox Broadcasting Co., Inc. (in CV-12-6921), and Plaintiffs NBCUniversal Media LLC, Universal Network Television LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC-TV) LLC, Telemundo Network Group LLC, WNJU-TV Broadcasting LLC, American Broadcasting Companies, Inc., ABC Holding Company Inc., Disney Enterprises, Inc., CBS Broadcasting Inc., CBS Studios Inc., and Big Ticket Televison, Inc. (in CV-12-6950) (collectively, “Plaintiffs”) moved for a preliminary injunction against Defendants Aereokiller LLC, Alkiviades “Alki” David, FilmOn.TV Networks, Inc., Filmon.TV, Inc., and FilmOn.com, Inc. (collectively, “Defendants”).1 Plaintiffs filed an identical motion in each action. Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction (“Mot.”), Docket No. 49 at 1 n. I.2

Plaintiffs produce and license the distribution of copyrighted works that appear on free, over-the-air broadcast television networks. Id. at 4.3 Plaintiffs also license that programming for distribution through cable and satellite television, and through services such as Hulu.com and Apple’s iTunes. Id. at 5. Plaintiffs accuse Defendants of offering their copyrighted content through internet and mobile device streaming. Id. at 5. Defendants do not deny that they retransmit Plaintiffs’ copyrighted broadcast programming, but argue that their service is legal because it is technologically analogous to the service which the Southern District of New York found to be non-infringing in Am. Broad. [1141]*1141Cos. v. AEREO, Inc., 874 F.Supp.2d 373 (S.D.N.Y.2012) (“Aereo”)4 Defendants contend that their systems are “better and more legally defensible than Aereo’s,” but that the systems are similar in allowing users to use an individual mini digital antenna and DVR to watch or record a free television broadcast.” Opp’n., Docket No. 46 at 1. Defendants characterize their system as offering “a user-directed private viewing of already available, free over-the-air television content using the same antenna and tuner technology employed by consumers for years.” Id.5

II. Legal Standards

A. Preliminary Injunctive Relief

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

B. Geographical Reach of Injunction Where Circuit Split Present

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

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronounce[1142]*1142ments of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

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

C. Copyright Infringement

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

III. Analysis

A. The Court Would Grant In Part and Deny In Part Defendants’ Request for Judicial Notice

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

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915 F. Supp. 2d 1138, 41 Media L. Rep. (BNA) 1515, 108 U.S.P.Q. 2d (BNA) 1503, 2012 U.S. Dist. LEXIS 184209, 2012 WL 6784498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-television-stations-inc-v-barrydriller-content-systems-plc-cacd-2012.