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

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______________________ FOX TELEVISION STATIONS, INC., 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 Case Nos. CV-12-6921-GW and CV-12-6950-GW District Judge George H. Wu ______________________ BRIEF OF THE FOX APPELLEES/CROSS-APPELLANTS ______________________

Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071

Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington DC 20001

Attorneys for Plaintiff-Appellees and Cross-Appellants Fox Television Stations, Inc., Twentieth Century Fox Film Corp., and Fox Broadcasting Company

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and to enable the Court to evaluate possible disqualification or recusal, the Fox Appellees and Cross-Appellants certify as follows: Fox Broadcasting Company is an indirect, wholly-owned subsidiary of News Corporation, a publicly traded company. No publicly held company owns 10% or more of News Corporation stock. Twentieth Century Fox Film Corp. is also an indirect, wholly-owned subsidiary of News Corporation, a publicly traded company. No publicly held company owns 10% or more of News

Corporation stock. Fox Television Stations, Inc. is also an indirect, whollyowned subsidiary of News Corporation, a publicly traded company. No publicly held company owns 10% or more of News Corporation stock.

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TABLE OF CONTENTS Page STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF THE ISSUES...............................................................................1 PRELIMINARY STATEMENT ...............................................................................2 STATEMENT OF THE CASE ..................................................................................6 STATEMENT OF FACTS ........................................................................................6 A. Public Performance Rights Under The Copyright Act ..................6 B. The Cablevision Case .....................................................................9 C. FilmOn, Aereo, And Aereokiller ..................................................11 D. The District Courts Ruling ..........................................................13 E. The Aereo Appeal .........................................................................14 STANDARD OF REVIEW .....................................................................................16 SUMMARY OF ARGUMENT ...............................................................................16 ARGUMENT ...........................................................................................................20 I. The District Court Correctly Held That The Broadcasters Are Likely To Succeed On The Merits..................................................................20 A. Aereokiller Publicly Performs The Broadcasters Copyrighted Programs ...................................................................................20 B. Systems Using Mini-Antennas And Individual Copies Are Not Exempt From The Transmit Clause ..........................................22 C. The District Court Correctly Rejected Cablevision .....................25 1. The Cablevision Court Confused The Terms Performance And Transmission. .............................25

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2. The Reasoning That Led The Cablevision Court To Hold That Each Transmission Is A Separate Performance Was Flawed ....................................................................29 3. Reading The Statute Correctly Would Not Make All Performances Public .......................................................33 4. A Public Performance Does Not Require A Master Copy....................................................................35 5. Cablevision Is Not Only Wrong, But Also Distinguishable ...............................................................40 D. Aereokillers Subscribers Are Not Transmitting The Programming To Themselves Using Remote Equipment.....41 E. Aereokiller Does Not Have A Fair Use Defense ..........................45 II. The District Court Correctly Concluded That Each Of The Relevant Factors Supported A Preliminary Injunction ......................................50 A. The District Court Correctly Found That Aereokillers Illegal Service Would Irreparably Harm The Broadcasters .................50 B. The District Court Correctly Found That The Balance Of Hardships Favored An Injunction .............................................56 C. The District Court Correctly Found That An Injunction Would Serve The Public Interest ..........................................................58 JOINDER IN THE ABC PARTIES CROSS-APPEAL ARGUMENTS ...............61 CONCLUSION ........................................................................................................61 STATEMENT REQUESTING ORAL ARGUMENT ............................................63 CERTIFICATE OF COMPLIANCE .......................................................................64 CERTIFICATE OF RELATED CASES .................................................................65

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TABLE OF AUTHORITIES Page(s) CASES

Am. Broad. Cos., Inc. v. Aereo, 874 F. Supp. 2d 373 (S.D.N.Y. 2012) .........................................................passim AMP Inc. v. Foxconn Intl, Inc., No. 93-1162, 1994 WL 315889 (C.D. Cal. Mar. 7, 1994) ................................. 57 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) ............................................................................. 57 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ........................................................................................7, 48 Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) ........................................................................passim Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) ............................................................................... 35 Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989) ........................................................................44, 45 Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600 (1st Cir. 1988) ............................................................................... 56 Contl Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099 (9th Cir. 1994) .............................................................................. 55 Corley v. United States, 556 U.S. 303 (2009) ............................................................................................ 28 Credit Bureau Connection, Inc. v. Pardini, 726 F. Supp. 2d 1107 (E.D. Cal. 2010) ............................................................. 55 Cuviello v. City of Oakland, No. 06-5517, 2007 WL 2349325 (N.D. Cal. Aug. 15, 2007) ............................. 57 Diamontiney v. Borg, 918 F.2d 793 (9th Cir. 1990) .............................................................................. 53
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eBay, Inc. v. Bidders Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) .............................................................. 54 Eldred v. Ashcroft, 537 U.S. 186 (2005) ............................................................................................ 58 Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) .............................................................................. 56 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) .....................................................................................passim Fox Broadcasting Co. v. Dish Network, LLC, --- F. Supp. 2d ---, 2012 WL 5938563 (C.D. Cal. Nov. 7, 2012) .................49, 50 Gilder v. PGA Tour, Inc., 936 F.2d 417 (9th Cir. 1991) .............................................................................. 54 Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079 (7th Cir. 2008) ............................................................................ 52 Helene Curtis Indus. v. Church & Dwight Co., Inc., 560 F.2d 1325 (7th Cir. 1977) ............................................................................ 57 Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) ............................................................................... 46 L.A. News Serv. v. Reuters Television Intl, Inc., 149 F.3d 987 (9th Cir. 1998) .............................................................................. 46 L.A. News Serv. v. Tullo, 973 F.2d 791 (9th Cir. 1992) .............................................................................. 46 Marlyn Nutraceuticals, Inc. v. Muco Pharma Gmbh & Co., 571 F.3d 873 (9th Cir. 2009) .............................................................................. 16 McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) ............................................................................ 16 Metro One Telecomms., Inc. v. C.I.R., 704 F.3d 1057 (9th Cir. 2012) ............................................................................ 20

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MGM Studios, Inc. v. Grokster, 545 U.S. 913 (2005) ......................................................................................59, 60 Mullins v. City of N.Y., 626 F.3d 47 (2d Cir. 2010) ................................................................................. 53 Natl Football League v. TVRadioNow Corp., Nos. 00-120, 00-121, 2000 WL 34200602 (W.D. Pa. Feb. 29, 2000) ................. 3 On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) ..............................................................passim Princeton Univ. Press v. Mich. Document Servs. Inc., 99 F.3d 1381 (6th Cir. 1996) .............................................................................. 46 Rent-A-Center, Inc. v. Canyon Tel. & Appliance Rental, Inc., 944 F.2d 597 (9th Cir. 1991) .............................................................................. 54 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ........................................................................21, 31 SoftMan Prods. Co. LLC v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) .............................................................. 61 Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984) ......................................................................................48, 49 Stuhlbarg Intl Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ........................................................................52, 54 Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330 (9th Cir. 1995) .............................................................................. 56 Twentieth Century Fox Film Corp. v. iCraveTV, Nos. 00-120, 00-121, 2000 WL 255989 (W.D. Pa. Feb. 8, 2000) .....3, 51, 52, 54 Video Pipeline, Inc. v. Buena Vista Home Entmt, Inc., 192 F. Supp. 2d 321 (D.N.J. 2002) ..................................................................... 46 Warner Bros. Entmt Inc. v. WTV Systems, Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011) .......................................................passim

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................................ 16 WNET, Thirteen v. Aereo, Inc., --- F.3d ---, 2013 WL 1285591 (2d Cir. Apr. 1, 2013) ................................passim WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) ........................................................................passim WPIX, Inc. v. ivi, Inc., 765 F. Supp. 2d 594 (S.D.N.Y. 2011) ..........................................................51, 55 Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) .............................................................................. 46
STATUTES

17 U.S.C. 101 .................................................................................................passim 17 U.S.C. 106 ....................................................................................................7, 21 17 U.S.C. 111 .......................................................................................................... 8

OTHER AUTHORITIES

CBS Broad. Inc. v. FilmOn.com, Inc., No. 10-7532, ECF No. 49 (S.D.N.Y. Aug. 9, 2012) ..............................51, 52, 54 H. Comm. on the Judiciary, 89th Cong., 1st Sess., Supplemental Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 13-14 (Comm. Print 1965) ......................................................................... 23 H.R. Rep. No. 94-1476 (1976), 1976 U.S.C.C.A.N. 5659 ........................................ 8 Jane C. Ginsburg, Recent Developments in US Copyright Law Part II, Caselaw: Exclusive Rights on the Ebb?, Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08158, (2008) ........................... 27 Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists In Poor (Cable)Vision, The Media Institute (Apr. 23, 2013) .......................................... 28 Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or. L. Rev. 505, 536 (2011) ......................................... 29

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Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2012).............37, 38 Paul Goldstein, Goldstein on Copyright 7.7.2 (3d ed. 2008) .........................24, 28 Wright, Miller & Kane, Federal Practice & Procedure 2948.1 (2d ed. 1995) ................................................................................................................... 53

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STATEMENT OF JURISDICTION The Fox Parties agree with Aereokillers jurisdictional statement, and join and incorporate by reference the ABC Parties jurisdictional statement relating to the cross-appeal. STATEMENT OF THE ISSUES 1. Under the Copyright Act, to publicly perform a copyrighted

television program means to transmit it to the public using any device or process that is now known or later developed. Thus, cable, satellite, and internet services must be licensed to retransmit broadcast television; if they are not, they are infringing the copyright owners exclusive right to publicly perform the programs. Aereokiller claims that due to a loophole in the law created by the Second Circuit in Cablevision,1 the system of mini-antennas and digital recording devices that it uses to retransmit live television programs over the internet to thousands or millions of people does not result in a public performance. Thus, Aereokiller contends, it is free to operate its for-profit retransmission business without paying for a license. Was the district court correct to enjoin Aereokillers service and reject this argument? 2. Every court to consider the issue has held that the unlicensed

retransmission of copyrighted broadcast programming over the internet

1

Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) .
1

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irreparably harms broadcasters by, among other things, damaging their goodwill, damaging their ability to negotiate favorable license agreements with cable and satellite companies, unfairly competing with their own internet distribution channels, and harming negotiations with advertisers by diverting viewers to a platform where viewership is not measured for the purposes of advertising revenue calculation. The Broadcasters presented uncontroverted evidence that the same harms would occur here. Was the district court correct to find that the Broadcasters would suffer irreparable harm if Aereokiller was not enjoined? PRELIMINARY STATEMENT Aereokiller is in the business of capturing live broadcast television signals and retransmitting the programming over the internet. Anyone can watch live television on Aereokiller simply by going to Aereokillers website, or using its mobile application to watch television on a cell phone or tablet. Aereokiller makes money by charging subscription fees to watch television in high definition, and by displaying banner ads and running commercials that play when the viewer selects a channel to watch (the advertisers pay Aereokiller, not the broadcast networks, for these ads). ER 1070, 1076. Unlike the cable, satellite, and other authorized retransmission

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services with which it competes, Aereokiller is paying nothing for the broadcast programming that it profits from. This is illegal. Under a provision of the 1976 Copyright Act known as the Transmit Clause, transmitting copyrighted television programs to the public using any device or process is a public performance that infringes the copyright owners exclusive rights if it is not licensed. 17 U.S.C. 101; id. 106(4). Companies that retransmit broadcast programming over the internet without a license are commonly enjoined. E.g., WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 288 (2d Cir. 2012), cert. denied, --- S. Ct. ---, 81 U.S.L.W. 3511 (Mar. 18, 2013); Twentieth Century Fox Film Corp. v. iCraveTV, Nos. 00120, 00-121, 2000 WL 255989, at *1 (W.D. Pa. Feb. 8, 2000); Natl Football League v. TVRadioNow Corp., Nos. 00-120, 00-121, 2000 WL 34200602, at *1 (W.D. Pa. Feb. 29, 2000). In fact, Aereokillers sister company, FilmOn, was enjoined from retransmitting live television over the internet several years ago by a district court in New York. ER 1072, 111112. Aereokiller believes it has found a legal loophole that allows it to do exactly what cable, satellite, and other authorized retransmission services do retransmit broadcast television to the public for a profit yet without

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paying for the same licenses these other services pay for. In 2008, the Second Circuit held in Cablevision that a cable provider licensed to retransmit broadcast programming could offer a remote DVR service without having to take a second license to cover the transmissions from the cable companys remote server that occurred when the subscribers played back the recorded programs. See 536 F.3d at 140-41. The Cablevision Courts analysis was that these playback transmissions were private, because they emanated from unique copies made by subscribers, and each transmission could only be received by the subscriber who had copied the program. Id. at 134-35. Aereokiller designed its system to use thousands of miniature antennas and digital copies to retransmit the programming, so it can claim that its transmissions are private under Cablevision.2 In other words, Aereokiller would contend that when one million people go on its website Thursday night at 8:00 pm and watch Glee, there is no public performance by Aereokiller just one million private performances of Glee that Aereokiller is making money from without paying a dime to the company

The Broadcasters do not know whether this is really how Aereokillers system works, since they were denied expedited discovery regarding the details of Aereokillers technology, ER 1948-50, but will assume for the purpose of this appeal that Aereokillers description of its system is accurate.
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that invested millions of dollars in creating and producing that copyrighted work. That is plainly not right. Cablevision and the doctrine of stare decisis might have required the Second Circuit to bless Aereo (a similar service that Aereokiller knocked off, hence the name Aereokiller). See WNET,

Thirteen v. Aereo, Inc., --- F.3d ---, 2013 WL 1285591 (2d Cir. Apr. 1, 2013); but see id. at *15-22 (Judge Chin dissenting on the ground that a retransmission system consisting of miniature antennas and individual copies is clearly a device or process that transmits copyrighted programming to the public, and arguing that Cablevision should not have been controlling because it involved a DVR, not an unlicensed retransmission service). But Cablevision is not the law in this Circuit. And, as leading scholars have noted, Cablevisions interpretation of the Transmit Clause was incorrect. Under the Transmit Clause, transmitting a

performance of a work to the public is a public performance. Whether the performance is transmitted to the public simultaneously in a single transmission, or seriatim in many transmissions, or whether the transmitter uses one copy or many, is not relevant under the statutes plain language. Judge Wus careful analysis of the statutory language, legislative history, and Cablevisions reasoning led him to reject the Cablevision

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Courts reading of the Transmit Clause and hold that Aereokiller was infringing under the statutes plain language. This analysis was correct, and this Court should therefore affirm the preliminary injunction against Aereokiller. STATEMENT OF THE CASE The Broadcasters sued Aereokiller for copyright infringement on August 10 and 13, 2012, and jointly moved for a preliminary injunction on November 8, 2012. The district court (Wu, J.) conducted three separate hearings on that motion and, on December 27, 2012, preliminarily enjoined Aereokiller from retransmitting the Broadcasters copyrighted television programming over the internet, but limited the scope of the injunction to the geographic boundaries of the Ninth Circuit. These consolidated appeals followed. STATEMENT OF FACTS A. Public Performance Rights Under The Copyright Act.

The Broadcasters own the copyrights to a large number of the programs broadcast by television stations over-the-air to viewers. For

example, Fox owns the copyrights in popular shows such as Glee, Family Guy, Touch, and Bones. Broadcasters invest significant resources in the

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development, acquisition and production of their programming. E.g., ER 1456. Although those programs are available to viewers for free over the airwaves, this does not mean that a business can free-ride on the Broadcasters investment by capturing broadcast signals and retransmitting them to customers for a profit. Copyright law gives owners of motion pictures and other audiovisual works the exclusive right to perform the copyrighted work[s] publicly. 17 U.S.C. 106(4). Under the Transmit Clause, the exclusive right of public performance includes the right to transmit or otherwise communicate a performance or display of the work . . . 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. Id. 101. By this language, it is copyright infringement for a service provider to retransmit copyrighted television broadcasts without a license. In fact,

requiring cable companies and other retransmission services to pay royalties under statutory or negotiated licenses was one of Congresss express purposes when it revised the Copyright Act in 1976. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 709-10 (1984) (In revising the

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Copyright Act . . . Congress concluded that cable operators should be required to pay royalties to the owners of copyrighted programs retransmitted by their systems on pain of liability for copyright infringement.); see also H.R. Rep. No. 94-1476, at 88-89 (1976), 1976 U.S.C.C.A.N. 5659, 5702-5704 (cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and . . . copyright royalties should be paid by cable operators to the creators of such programs) (the 1976 Report).3 The Transmit Clause was enacted specifically to bring retransmission of broadcast programming within the performance right, in response to prior Supreme Court cases holding that cable systems did not perform copyrighted television programs when they captured broadcast signals and delivered them over cable wire to their subscribers. E.g. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 399-400 (1968). The

rationale of these cases which Congress rejected was that cable systems

Section 111 of the Copyright Act creates a statutory license that permits cable services to retransmit broadcast signals to their subscribers, provided they pay royalties at government-regulated rates and abide by the statutes procedures. ivi, 691 F.3d at 278. Services that retransmit broadcast programming over the internet are not entitled to take advantage of the statutory license; internet services must negotiate a license or incur liability for copyright infringement. Id. at 278-85.
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were merely enabling consumers to do what they could do anyway, i.e., receive over-the-air television broadcasts with an antenna. Id. Congress also recognized that technology would evolve and therefore wrote the Transmit Clause to be technology-neutral, so that the ability of copyright owners to prevent infringing transmissions would not depend on what technology the infringer used and would not be subject to technological erosion. The Transmit Clause encompasses transmissions made via any device or process, 17 U.S.C. 101 (emphasis added), and the statute defines device or process to include those now known or later developed. See id. B. The Cablevision Case.

Cablevision was decided by the Second Circuit in 2008. It involved a cable companys remote-storage DVR (RS-DVR) which, from the users perspective, operated in all practical respects like a regular DVR, except that the recorded programs were stored on a remote server instead of a set-top box. 536 F.3d at 124-25. When a subscriber used her remote control to play back a program, the program would be transmitted from the remote server to her television. Id. The question in Cablevision was whether these playback transmissions were a public performance. Id. at 134. Because the cable company had a license to retransmit live broadcast programming to its

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subscribers, there was no issue involving unauthorized retransmission; the only issue was whether an additional license was needed for the viewer to play back the programming she had recorded. Id. at 123, 134. The Cablevision Court held that the playback transmissions were not a public performance. 536 F.3d at 136-38. Whatever one thinks of that outcome, the important thing here is not the result but how it was reached. The Cablevision Court held that when the Transmit Clause refers to members of the public capable of receiving the performance, Congress really meant capable of receiving the transmission. Thus, the Court

decided that a public performance occurs only if the transmitter makes a single transmission that is capable of being received by multiple people. Id. at 134-35. Under this reasoning, a transmitter could transmit a copyrighted program to thousands or millions of subscribers by sending an individual transmission to each subscriber yet that would not count as a public performance. See id. The Cablevision Court also held that under the Transmit Clause it is relevant whether each transmission of the same program emanates from the same copy of the program or from unique, subscriber-associated copies, as was the case with the RS-DVR. 536 F.3d at 138. Based on this

interpretation of the Transmit Clause, the Court held that [b]ecause each

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RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, there was no public performance. Id. at 139. C. FilmOn, Aereo, And Aereokiller.

FilmOn (Aereokillers sister company), Aereo, and Aereokiller are services that retransmit live broadcast television programming over the internet without a license. FilmOn launched in September 2010. ER 1071. The Broadcasters immediately sued FilmOn for copyright infringement and obtained a temporary restraining order. ER 1072. Aereo took a different approach than FilmOn. It designed its system to exploit the potential loopholes that the Cablevision decision created in the Transmit Clause. Instead of using a single antenna to capture broadcast signals, Aereo uses thousands of miniature antennas which it rotates among its subscribers as they log in to watch broadcast programming. Aereo, 2013 WL 1285591 at *2. When a subscriber watches live television on Aereo, the signal from the antenna temporarily assigned to her is routed to Aereos server, which starts copying the program. Id. Once six or seven seconds of programming have been saved on the server, Aereo streams the program over the internet to the subscriber from this copy. Id.

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From the subscribers perspective, Aereos miniature antenna and copying set-up is invisible: the subscriber simply logs on to Aereo, selects a program that is currently being broadcast on network television from a program guide, and then watches the program essentially live, albeit with a six or seven second delay. 2013 WL 1285591 at *1-2. Aereo limited its operations to the Second Circuit so that if it were sued, Cablevision would be controlling. Id. at *21 (Chin, J., dissenting). In March 2012, the Broadcasters sued Aereo in the Southern District of New York. Because Aereos system was designed to map onto

Cablevisions interpretation of the Transmit Clause, the court refused to enjoin Aereo, holding that [b]ut for Cablevisions express holding regarding the meaning of the provision of the Copyright Act in issue here the transmit clause Plaintiffs would likely prevail on their request for a preliminary injunction. Am. Broad. Cos., Inc. v. Aereo, 874 F. Supp. 2d 373, 375 (S.D.N.Y. 2012). On July 31, 2012, FilmOn settled with the Broadcasters and the court entered a consent judgment permanently enjoining FilmOn from retransmitting copyrighted broadcast programs without a license. See ER 1073, 1079-102. Days later, FilmOn resurfaced as Aereokiller, claiming that it was now using an Aereo-like miniature antenna and copying system

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and therefore could legally retransmit broadcast programming over the internet with no license. The Broadcasters immediately sued Aereokiller in the Central District of California, and the case was assigned to the Hon. George H. Wu. D. The District Courts Ruling.

Judge Wu granted the Broadcasters motion for a preliminary injunction. ER 4-10. Assuming for the purpose of the motion that

Aereokiller was using the same system as Aereo, Judge Wu carefully parsed the language of the Transmit Clause, analyzed Cablevisions reasoning, and concluded that Cablevisions interpretation of the Transmit Clause was incorrect. ER 5-7. Based on the statutes plain language, legislative history, and this Circuits law, Judge Wu held that Aereokiller was publicly performing broadcast programming because it was transmitting a performance of the work i.e., the program to the public. Id. Judge Wu also rejected Aereokillers argument that its service was non-infringing because it merely enabled its customers to do what they could lawfully do for themselves with an antenna, DVR, and Slingbox. See ER 684-85. As Judge Wu explained, this was the very reasoning Congress rejected when it revised the Copyright Act in 1976 and overruled Fortnightly. ER 5-6.

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Judge Wu also found that the Broadcasters had demonstrated irreparable harm because the evidence showed that Aereokillers service threatens the Broadcasters ability to (i) preserve their goodwill with licensees and negotiate retransmission agreements with cable, satellite, and other telecommunications providers; (ii) develop their own internet distribution channels; and (iii) negotiate with advertisers. ER 7-8. Judge Wu also noted that Aereokiller would be unlikely to satisfy a statutory damages award. ER 8. Judge Wu also found that the harm to the

Broadcasters outweighed any harm to Aereokiller, which has no equitable interest in continuing an infringing activity. Id. And he concluded that the 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. (citation omitted). E. The Aereo Appeal.

When Judge Wu ruled in this case, the appeal of the order denying a preliminary injunction against Aereo was pending in the Second Circuit. On April 1, 2013, the Second Circuit issued a split opinion affirming the district court. Aereo, 2013 WL 1285591 at *14. Because it was bound by its prior decision in Cablevision, the Aereo majority did not apply the Transmit

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Clause based on its plain language but instead followed Cablevisions interpretation. Id. at *6, 13. Thus, the majority held that Aereo does not publicly perform the Broadcasters copyrighted programming by streaming it live over the internet to subscribers because every subscriber watching live television on Aereo receives an individual transmission from a unique copy of the program. Id. at *5-9. Judge Chin filed a sharp dissent, characterizing Aereos system as a sham and a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. 2013 WL 1285591 at *15. The dissent explains why the plain language of the Transmit Clause compels the conclusion that Aereo publicly performs broadcast programming: It is apparent that Aereos system falls squarely within the plain meaning of the statute . . . . The statute is broadly worded, as it refers to any device or process. Aereos system of thousands of antennas and other equipment is clearly a device or process. Using that device or process, Aereo receives copyrighted images and sounds and transmit[s] or otherwise communicate[s] them to its subscribers beyond the place from which they are sent[.] . . . The performance or display of the work is then received by paying subscribers in separate places and at different times. Id. at *17 (internal citations omitted).

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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 1004, 1010 (9th Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)) (brackets in original). This Court reviews a district courts 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. Muco Pharma Gmbh & Co., 571 F.3d 873, 876 (9th Cir. 2009) (citation omitted, alterations in original). The district courts interpretation of underlying legal principles is subject to de novo review. McCormack, 694 F.3d at 1010. SUMMARY OF ARGUMENT Judge Wu was correct to conclude that Aereokiller publicly performs copyrighted broadcast programming when it streams it over the internet where it can be received by anyone on a computer, cell phone, or tablet.

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Aereokillers miniature antenna and copying system is a device or process that Aereokiller uses to transmit programming to members of the public. Therefore, Aereokiller falls squarely within the Transmit Clause. There is no reasonable reading of the Transmit Clause that would make Aereokillers system exempt. To the extent Cablevisions interpretation of the Transmit Clause would justify allowing Aereokiller to continue operating unlicensed, that interpretation cannot be squared with the statutes text or legislative history, and Judge Wu was correct to reject it. Moreover, Cablevision is

distinguishable because it involved only a remote DVR service offered as an adjunct to a legal, licensed cable television service. Cablevision did not hold that an unlicensed service provider could avoid the need for a license altogether by using unique copies and separate streams to retransmit the programming. Aereokiller characterizes its system as advanced technology that allows consumers to remotely access antennas and related equipment they can use to supposedly transmit broadcast programming to themselves. This is not accurate. Aereokiller is a retransmission service. Viewers watching television programming on Aereokiller do not use remote antenna equipment to transmit programming to themselves any more than satellite television

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subscribers use remote satellite equipment to transmit programming to themselves. Viewers use Aereokillers ad-sponsored website and mobile applications to watch television over the internet, not to own and operate remote antennas or any other technology platform. The experience is the same as watching programs on a television. The viewer simply selects a channel, and watches it:

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ER 220. Courts within this Circuit have squarely rejected attempts by service providers to avoid copyright liability by claiming they are not transmitting copyrighted works but instead simply providing remote equipment viewers use to transmit the works to themselves. See, e.g., Warner Bros. Entmt Inc. v. WTV Systems, Inc., 824 F. Supp. 2d 1003, 1010-11 (C.D. Cal. 2011) (enjoining internet movie streaming service, and rejecting argument that the service was really just allowing viewers to rent and watch movies remotely); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787, 789-90 (N.D. Cal. 1991) (granting summary judgment against service that transmitted movies to hotel room televisions, and rejecting argument that the

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service was really offering electronic rentals similar to patrons physical borrowing of videotapes.). The Court should also reject Aereokillers claim that its infringing activities are somehow protected by fair use principles. Just because individuals can receive broadcast television using rooftop antennas does not mean Aereokiller is entitled to act as a middleman and profit from capturing and retransmitting programming for which it pays nothing. As Judge Wu recognized, this is the same justification that Congress rejected when it enacted the Transmit Clause and overruled Fortnightly. Moreover, no court has ever held that a fair use defense could even theoretically apply in a performance right claim against a commercial retransmission service. ARGUMENT I. The District Court Correctly Held That The Broadcasters Are Likely To Succeed On The Merits. A. Aereokiller Publicly Performs The Broadcasters Copyrighted Programs.

The starting point for the Courts analysis is the plain language of the Transmit Clause. Metro One Telecomms., Inc. v. C.I.R., 704 F.3d 1057, 1061 (9th Cir. 2012). The preeminent canon of statutory interpretation requires us to presume that the legislature says in a statute what it means and

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means in a statute what it says there. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (internal brackets omitted). The Copyright Act grants copyright owners the exclusive right to perform their copyrighted works publicly. 17 U.S.C. 106(4). Section 101 of the Act defines what it means to perform a work publicly. Under the Transmit Clause, to perform a work publicly is: to transmit or otherwise communicate a performance or display of the work . . . 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. Id. 101. A television program is performed when its images and sounds are played. 17 U.S.C. 101 (definition of perform an audiovisual work). To transmit a performance is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. Id. And a device or process includes one now known or later developed. Id. Aereokiller publicly performs the Broadcasters programs within the plain language of the statute. For example, Aereokiller performs the Fox program Glee when it retransmits Glee by capturing Foxs signal on its

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antennas, transcoding the signal for delivery over the internet, and streaming Glee over the internet. Aereokillers technology its system of miniature antennas, copies, and the internet is a device or process. The Aereokiller technology transmits the program: Aereokiller viewers can receive and watch Glee at any location on a computer or mobile device, which is a place beyond the place from which the images and sounds of the program were sent. And Aereokiller transmits the program to the public: viewers

watching Glee on Aereokiller are members of the public who receive the performance of Glee in separate places. Thus, Aereokiller is publicly

performing the Broadcasters copyrighted programs under the plain language of the Transmit Clause. B. Systems Using Mini-Antennas And Individual Copies Are Not Exempt From The Transmit Clause.

Judge Wu was right to reject Aereokillers claim that its technology is somehow exempt from the Transmit Clause. The Transmit Clause is expressly technology-neutral. It clearly states that a work is performed publicly if it is transmitted to the public by means of any device or process. 17 U.S.C. 101 (emphasis added). This broad language is

repeated in the definition of transmit, which can be done using any device or process. Id. The fact that Congress intended to capture all possible technologies within the definition of public performance is
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underscored by the statutes definition of device or process, which includes those now known or later developed. Id. The legislative history further confirms Congresss 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 wires and 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 also id. at 63 (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); H. Comm. on the Judiciary, 89th Cong., 1st Sess., Supplemental Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 13-14 (Comm. Print 1965) ([T]he 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

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materially affect the value of his copyright . . . . A real danger to be guarded against is that of confining the scope of an authors 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.). Ignoring the statutes plain language and legislative history, Aereokiller and its amici argue that when Congress enacted the 1976 Copyright Act, it wrote the Transmit Clause narrowly to balance copyright owners rights with the publics right to access the copyrighted works through private performances. E.g., Appellants Opening Brief (AOB) at 13; Aereo Amicus Brief at 8-10. The only support they cite for this is general language stating that only public performances are actionable, which is of course not disputed. This is revisionist history. The types of private performances

Congress had in mind were things like singing in the shower, listening to the radio, or watching television in the home. E.g., 1976 Report at 63-64; see also Paul Goldstein, Goldstein on Copyright 7.7.2 (3d ed. 2008) (Congress determined that the copyright owners 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

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user to negotiate a license.). There is nothing in the statute or legislative history indicating Congress would have intended a commercial service retransmitting live broadcast programming to thousands or millions of people to be engaging in private performances. C. The District Court Correctly Rejected Cablevision.

Aereokillers only argument that its service is non-infringing relies on the Cablevision Courts interpretation of the Transmit Clause, which it asserts Judge Wu should have followed. As detailed below, Cablevisions reading of the Transmit Clause does violence to the plain language of the statute and the intent of Congress, produces absurd results, has been roundly criticized by leading scholars, and should not be adopted by this Court. 1. The Cablevision Court Confused The Terms Performance And Transmission.

As Judge Wu recognized, the basic, underlying mistake in Cablevision was the Second Circuits conclusion that a transmission of a performance is itself a performance. 536 F.3d at 134 (citation omitted); ER 5. This led the court to replace the term performance in the Transmit Clause with the term transmission, thereby effectively and 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 device or process, whether
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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. Applying its revised version of the Transmit Clause, the Second Circuit reasoned that unless a single transmission is capable of being received by multiple people, the transmitter has not infringed the public performance right. 536 F.3d at 134-40. This was wrong. As defined by the statute, a transmission and a performance are not the same thing. To transmit a performance is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. 17 U.S.C. 101. This tells us that the performance is the thing that is communicated and the transmission is the means of communicating the performance. As Judge Wu correctly explained, the Transmit Clause, properly read, says that transmitting a performance to the public is a public performance. ER 5. It does not by its express terms require that two members of the public receive the performance from the same transmission. ER 6. Moreover, the fact that the Transmit Clause states that transmitting a performance to the public is a public performance even if the members of the public capable of receiving the performance receive it at different times confirms that Congress envisioned multiple transmissions of the
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same work as being a public performance. This is because there is no such thing as two people receiving the same transmission at different times. People receiving transmissions at different times are necessarily receiving separate transmissions. See Jane C. Ginsburg, Recent Developments in US Copyright Law Part II, Caselaw: Exclusive Rights on the Ebb?, Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08158, (2008), pubd in 218 Revue Internationale du Droit dAuteur (2008) (Fr.), 26 (The [Cablevision] courts 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 to differently

located recipients, recipients differently situated in time cannot receive the same transmission.).4 By interpreting the Transmit Clause as requiring each separate transmission to be treated as a distinct performance, the Cablevision Court read the different times language out of the statute. Under Cablevisions interpretation, whenever a service transmits a performance of a work to members of the public who receive it at different times, the performance would necessarily be private, and never public, because each recipient Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1305270.=columbia_pllt
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would be receiving a separate transmission. See Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists In Poor (Cable)Vision, The Media Institute (Apr. 23, 2013) (explaining that at different places and different times is the key language that should make clear that Congress was covering both simultaneous, and asynchronous transmissions, and that the Second Circuits reading effectively deletes different times from the statute, thus defeating Congresss clear intent to bring pay-per-view and other individualized forms of transmission within the scope of the Copyright Act).5 By reading language out of the statute, the Cablevision Court

violated one of the most basic rules of statutory construction. See Corley v. United States, 556 U.S. 303, 314 (2009) ([O]ne of the most basic interpretive canons [is] that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.) (internal quotation marks and alterations omitted)). Leading scholars agree with Judge Wu that the Cablevision Court misread the statute. See Paul Goldstein, Goldstein on Copyright 7.7.2 (3d ed. 2008) (The error in the Second Circuits 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.);

Available at http://www.mediainstitute.org/IPI/2013/042313.php.
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Ginsburg, supra, at 26 (the court confused performance and transmission); Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or. L. Rev. 505, 536 (2011) (the court thought that the words performance and transmission were interchangeable . . . [but] a transmission and a performance remain, technically and legally, two distinct things); id. at 553 (The principal error in the courts application of the transmit clause was that it substituted the word transmission for the word performance in the phrase capable of receiving the performance[.]). 2. The Reasoning That Led The Cablevision Court To Hold That Each Transmission Is A Separate Performance Was Flawed.

Cablevisions reading of the Transmit Clause is illogical and not grounded in the statutes text. This is how the Cablevision Court reached its interpretation of the statute: The statute itself does not expressly define the term performance or the phrase to the public. It does explain that a transmission may be to the public . . . whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times. This plain language instructs us that in determining whether a transmission is to the public it is of no moment that the potential recipients of the transmission are in different places, or that they may receive the transmission at different times. The implication
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from this same language, however, is that it is relevant, in determining whether a transmission is made to the public, to discern who is capable of receiving the performance being transmitted. The fact that the statute says capable of receiving the performance instead of capable of receiving the transmission underscores the fact that a transmission of a performance is itself a performance. 536 F.3d at 134 (emphasis added, internal citation omitted). Each underlined word or phrase is a problem. First, the Transmit Clause does not explain that a transmission may be to the public . . . . Nor does the Transmit clause require us to determin[e] whether a transmission is to the public. The Transmit Clause says it is a public performance to transmit a performance of the work to the public. See 17 U.S.C. 101. This does not necessarily require a single transmission to the public, as the Cablevision Court seemed to believe. Rather, one can transmit a television program to the public either by transmitting it once to many people (like a television broadcast) or by transmitting it numerous times to many different people (like video-on-demand). Judge Wu recognized this. ER 6 (The statute provides an exclusive right to transmit a performance publicly, but does not by its express terms require that two members of the public receive the performance from the same transmission.).

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Moreover, [t]he fact that the statute says capable of receiving the performance instead of capable of receiving the transmission does not underscore . . . that a transmission of a performance is itself a performance. 536 F.3d at 134. This statement by the Cablevision Court is a non-sequitur. In actuality, the fact that the statute says capable of

receiving the performance instead of capable of receiving the transmission tells us that a performance made available by transmission is a public performance if members of the public are capable of receiving the performance. After all, we are supposed to assume that Congress meant what it said. Satterfield, 569 F.3d at 951. The Cablevision Court attempted to support its reading of the statute with language from the House Report on the 1976 Copyright Act, which said: Under the bill, as under the present law, 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 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. 536 F.3d at 135 (emphases and brackets omitted).

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The Cablevision Court assumed that because the House Report used the language potential recipients of the transmission, Congress must have meant that courts should look at the potential recipients of each separate transmission to determine whether a performance is public. But this is not what Congress wrote in the statute. Moreover, this language from the House Report is simply confirming that a transmission made available to a limited segment of the public such as hotel room occupants or cable subscribers is still public. It is not defining what it means to transmit a performance to the public, and it does not state that a public performance can only occur if a single transmission can be received by multiple people. Additionally, the very next sentence of the House Report says that Clause (2) of the definition of publicly is applicable whether the members of the public capable of receiving the performance or display receive it . . . at the same time or at different times. 1976 Report at 65 (emphasis added). Because, as explained above, a single transmission cannot be received at different times, this language tells us that Congress understood a public performance would occur if a performance was transmitted individually to members of the public at different times.

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3.

Reading The Statute Correctly Would Not Make All Performances Public.

The Cablevision Court attempted to support its interpretation of the Transmit Clause by stating that any other interpretation would obviate[] any possibility of a purely private transmission. 536 F.3d at 136. It used two examples to illustrate this point: Assume that HBO transmits a copyrighted work to both Cablevision and Comcast. Cablevision merely retransmits the work from one Cablevision facility to another, while Comcast retransmits the program to its subscribers. Under plaintiffs' interpretation, Cablevision would still be transmitting the performance to the public, solely because Comcast has transmitted the same underlying performance to the public. Similarly, a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom would be liable for publicly performing the work simply because some other party had once transmitted the same underlying performance to the public. Id. In other words, the Cablevision Court presumed that if each transmission was not viewed in isolation, then all transmissions of the same program by everyone in the universe would be viewed collectively as a public performance, making everyone who had ever transmitted that program an infringer. This is bizarre. In the Cablevision-Comcast

hypothetical, Cablevision has not publicly performed the program because

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Cablevision only transmitted the program between its own facilities and never transmitted it to the public. Likewise, in the hapless customer hypothetical, the customer has not publicly performed the program because he did not transmit it to the public, he transmitted it to himself in his bedroom. Judge Wu addressed the hapless customer hypothetical in his opinion, and correctly recognized [t]here is nothing public about such a performance. ER 6 n.12. Aereokiller echoes this fallacy in its brief, contending that if the preliminary injunction is affirmed, it will mean that a homeowner engages in a public performance if she receives a broadcast signal on a rooftop antenna and delivers that signal throughout her house, or if she plays a song she has stored on Apples iCloud service on multiple devices. AOB at 20. No. The homeowner is not transmitting the broadcast signal to the public; she is transmitting it to other rooms in her own house. And a person listening to a

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music file she owns is not publicly performing either; she is listening to her own music in private.6 4. A Public Performance Does Not Require A Master Copy.

The Cablevision Courts second critical error was its holding that if a system transmits copyrighted programs from unique, subscriber-associated copies, then each transmission is private. 536 F.3d at 138. This allowed the Court to square its interpretation of the Transmit Clause with other cases where courts found individualized transmissions to members of the public from a master copy to be public performances. E.g., Columbia Pictures

Aereokiller and its amici insist that if the Transmit Clause is read properly, then companies which purportedly relied on Cablevision to design cloud storage or cloud computing services will be harmed. Aereokiller is not a cloud storage service (nor is Aereo, despite what it claims in its amicus brief). Aereo and Aereokiller are services that retransmit broadcast television over the internet. As far as the Broadcasters are aware, it is not possible for a consumer to upload a file she owns and store it on Aereo or Aereokiller. Moreover, as the briefs of Aereokillers amici demonstrate, cloud computing, cloud service, cloud storage and the like are amorphous terms that companies use to describe a wide variety of different types of internet services. Some companies that refer to themselves as cloud services publicly perform copyrighted works under the Transmit Clause (e.g., Aereo). Others do not. Some of these services are licensed; others are not. Holding that Aereokiller is committing copyright infringement under the plain language of the statute would not mean that all cloud computing would become illegal. Indeed, it would not even mean that the Cablevision RS-DVR would become illegal. A reasonable court might conclude that transmissions to individual cable subscribers of shows they had chosen to have recorded on the RS-DVR do not constitute public performances.
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Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984) (separate transmissions of movies to private viewing booths were a public performance); On Command, 777 F. Supp. at 789-90 (separate transmissions of movies to separate hotel rooms was a public performance). A rule that a performance is public if separate transmissions emanate from a master copy but private if the transmissions emanate from individual copies cannot be squared with the language of the Transmit Clause. The Transmit Clause does not say anything about unique copies or master copies it says any device or process. The legislative history says nothing about unique copies or master copies. And this makes sense. Copyright law protects the copyrighted work, not any particular copy that work. A copy is just a material object, like a DVD or computer file, in which the copyrighted program is fixed. All copies of last weeks episode of Glee embody the same copyrighted work. There is no logical reason why Congress would have granted Fox, as the copyright owner, the exclusive right to stream Glee to the public from a master copy only, leaving retransmitters free to stream Glee without a license so long as they devise a device or process that first makes individual, subscriber-associated copies before streaming the programs. Judge Wu was plainly correct when he rejected this aspect of Cablevision, holding that the concern [under the Copyright Act] is with the

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performance of the copyrighted work, irrespective of which copy of the work the transmission is made from. ER 6 (emphasis added). The idea that transmissions from a master copy are public and transmissions from individual copies are private originated with the Nimmer Copyright treatise. See Cablevision, 536 F.3d at 138. In that treatise, the author editorialized that the different times language in the statute was probably meant to cover situations where the same work was performed over and over for members of the public for example, an old-fashioned penny arcade, where a short motion picture sequence might be seen in a coinoperated peep show device. 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 8.14[C][3] (2012). The treatise cites no statutory language or legislative history supporting the authors view and cannot override the plain language of the statute and Congresss express intent that it should be a public performance to transmit a performance to members of the public using any device or process. Moreover, Professor Nimmer himself acknowledged that deciding whether a performance is public or private based on whether it involves individual copies or a master copy produces absurd results. For example, the treatise states that under this rule, a person who rents a movie from a

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video store is publicly performing the movie because other people rented and watched that same copy: In the abstract, it may be argued that the practice of renting a given videocassette of a motion picture to various members of the public gives rise to public performances of the work, although each such performance of the work on a home television set is received only by an individual or family group. Nevertheless, the same copy gives rise to numerous performances, which are received by the public at different times. Therefore, under the wording of the Act, and by reason of the underlying rationale of what constitutes a public performance, it may follow that each individual rental performance is a public performance. Nimmer on Copyright 8.14[C][3]. A person sitting in his living room watching a DVD of Braveheart that he rented from Blockbuster is not publicly performing Braveheart. This is because he is neither playing the DVD at a place open to the public nor transmitting Braveheart to members of the public, as the statute requires. See 17 U.S.C. 101. Under Professor Nimmers analysis, four people who happened to rent the same DVD copy of Braveheart from Blockbuster would each be liable for publicly performing Braveheart by virtue of the fact that they all watched the same copy. Yet Aereokiller could retransmit the Super Bowl to thousands of subscribers without a license, and these would be deemed

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private performances simply because it has built a Rube Goldberg contraption that makes thousands of copies of the broadcast signal and transmits from those copies. The fact that Professor Nimmers analysis produces a result that conflicts with the statute and defies common sense confirms that his reasoning was flawed. Aereokiller contends that district courts in this Circuit have adopted Cablevisions master copy requirement, citing On Command and WTV Systems. This is not accurate. On Command involved a system for

transmitting movies to hotel rooms from a central bank of VCRs. 777 F. Supp. at 788-89. The court found that On Command was publicly

performing the movies but the fact that the hotel guests were watching the same copy was not part of the analysis. See id. at 789-90. Rather, the court reasoned that On Command was publicly performing the movies because the hotel guests were members of the public and the relationship between On Command and the hotel guests is a public one regardless of where the viewing takes place. Id. This is a more logical way to analyze whether a performance is to the public than by looking to whether the transmissions emanate from one copy or many. WTV Systems involved an internet service called Zediva that allowed customers to watch movies streamed over the internet. 824 F. Supp. at

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1006-08. As with On Command, the courts conclusion that Zediva was publicly performing the movies when it transmitted them over the internet to its customers was not based on the fact that Zediva had a master copy of each movie that it used to make the transmissions. Instead, it was based on the fact that Zedivas customers were members of the public. Id. at 1010 (Customers watching one of Plaintiffs Copyrighted Works on their computer through Zedivas system are not necessarily watching it in a public place, but those customers are nonetheless members of the public.). The district court noted that Cablevision was inapplicable

because Cablevisions RS-DVR used unique copies instead of the master copies used by Zediva, but it did not analyze or approve of Cablevisions reasoning. See id. at 1011 n.7. 5. Cablevision Is Not Only Wrong, But Also Distinguishable.

Even if Judge Wu had followed Cablevision, the correct result still would have been to enjoin Aereokillers unlicensed retransmission service. Because Cablevision was licensed to retransmit broadcast programming in the first instance, see 536 F.3d at 123, the court in that case did not consider whether a service without a license could avoid the need to obtain one by designing a system that used individual transmissions and unique copies to retransmit the programming.
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The RS-DVR at issue in Cablevision was completely different than Aereokillers unlicensed service. The RS-DVR was functionally the same as a set-top DVR, and it existed only to allow subscribers to copy and watch programming that Cablevision was licensed to provide to them. 536 F. 3d at 139; see also Aereo, 2013 WL 1285591 at *20 (Chin, J., dissenting). By contrast, Aereokillers system just like Aereos makes copies solely to argue that it can retransmit live programming without paying for the licenses that cable and satellite companies pay for. See Aereo, 2013 WL 1285591, at *20 (Chin, J., dissenting) (describing Aereos analogous system). As Judge Chin explained in his Aereo dissent: Aereos use of copies is essential to its ability to retransmit broadcast television signals, while Cablevisions copies were merely an optional alternative to a set-top DVR. The core of Aereos business is streaming broadcasts over the Internet in real-time; the addition of the record function, however, cannot legitimize the unauthorized retransmission of copyrighted content. Id. D. Aereokillers Subscribers Are Not Transmitting The Programming To Themselves Using Remote Equipment.

Aereokiller repeatedly mischaracterizes its service as merely allowing subscribers to use remote technology i.e., antennas and computer equipment to transmit programming to themselves. This characterization is a sham. Aereokiller is a retransmission service, whereby consumers can
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log onto Aereokillers web site or mobile application and watch live broadcast programming streamed over the internet. ER 1345-49, 1375-80, 1403-14; see also ER 933-34 (Aereokiller admitting its system receives, encodes, and distributes programming over the internet). The only thing the viewer does is choose a program to watch, just as she would on a television. No court would seriously entertain an argument by a cable or satellite provider that it does not need a license because it merely allows its subscribers to use remote technology i.e., antennas and cable wires, or a satellite dish to transmit television programming to themselves. Aereokiller is no different. Aereokiller is not the first service provider to try to skirt liability for transmitting copyrighted works by pretending its customers are merely controlling technology remotely. For example, the defendant in On

Command tried to argue that its system for transmitting movies from a central bank of VCRs to hotel room televisions was not actually transmitting movies to hotel rooms; instead, it characterized its service as merely allowing guests to rent movies electronically. On Command, 777 F. Supp. at 789. The court found this argument to be without merit, holding that: On Command transmits directly under the language system communicates images and sounds by a
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movie performances of the definition. The the motion picture device or process

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the equipment and wiring network from a central console in the hotel to individual guest rooms, where the images and sounds are received beyond the place from which they are sent. The fact that the hotel guests initiate this transmission by turning on the television and choosing a video is immaterial. Id. at 789-90 (emphasis added, internal citations omitted). Likewise, in WTV Systems, Zediva tried to argue that its system for streaming movies over the internet from a central bank of DVD players was not transmitting movies over the internet to its customers. 824 F. Supp. 2d at 1009. Instead, according to Zediva, its customers were merely renting DVDs remotely. Id. The court rejected this argument, holding that the Zediva service transmits performances of Plaintiffs Copyrighted Works directly under the language of the statute . . . . As in On Command, the fact that Zedivas customers initiate the transmission by turning on their computers and choosing which of Plaintiffs Copyrighted Works they wish to view is immaterial. Id. at 1009-10. As in On Command and WTV, Aereokiller is transmitting performances of the copyrighted programs under the plain language of the statute. Aereokiller communicates the images and sounds of the

copyrighted programs through the use of a device or process Aereokillers antenna farm, routers, transcoders, etc. The images and

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sounds are received beyond the place from which they were sent they are sent from Aereokiller and received on subscribers computers or mobile devices. Under the plain language of the statute, Aereokiller is transmitting television programming, not renting remote antennas, and the fact that individual viewers choose which program to watch does not mean they are transmitting the programs to themselves. On Command, 777 F. Supp. at 798-90; WTV, 824 F. Supp. 2d at 1009-1010. Aereokiller cites Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989), for the proposition that a hotel was not a retransmitter because the hotel was merely providing the consumers equipment that allowed them to watch the videos in private. See AOB at 27 n.12. Professional Real Estate Investors was completely different because the hotel in that case was renting guests videodiscs that they could pick up, bring back to their rooms, and play on videodisc players located in the hotel rooms. 866 F.2d at 279. The Court held that the hotel was not transmitting the movies because there was no performance being received from beyond the place it was sent; the guests were just watching videodiscs that were physically located in their hotel room disc players and played on their hotel room televisions. Id. at 282. Here, by contrast, there is obviously a performance being received beyond

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the place it was sent: the Broadcasters programming is being sent over the internet and being received by viewers watching Aereokiller on their computers and mobile devices. ER 1345-49. Moreover, the Court in Professional Real Estate Investors recognized that a closed-circuit system for transmitting movies to individual hotel guest rooms on-demand does publicly perform the movies. 866 F.2d at 282 n.7 (Spectradynes 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.). E. Aereokiller Does Not Have A Fair Use Defense.

Aereokiller argues that its service is legal under the fair use doctrine, because it simply allows viewers to receive and record broadcast programming that they would have the right to receive with a rooftop antenna and record with a DVR. AOB at 21-25; see id. at 9 (Through Aereokillers technology, a user may remotely record and privately view television programming the user indisputably has the right to record and to view.). This is wrong. It is irrelevant that some of Aereokillers viewers could receive broadcast programming using rooftop antennas. As Judge Wu correctly

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noted, copyright law recognizes a difference between what people can legally do on their own, and what a commercial service provider can legally do for a number of people. ER 6-7. First, a commercial retransmitter cannot avoid the need to obtain a license by claiming to stand in the shoes of its customers. See, e.g., L.A. News Serv. v. Tullo, 973 F.2d 791, 797 (9th Cir. 1992); 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); Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 112 (2d Cir. 1998) (en banc) ([C]ourts have rejected attempts by for-profit users to stand in the shoes of their customers.); Princeton Univ. Press v. Mich. Document Servs. Inc., 99 F.3d 1381, 1389 (6th Cir. 1996) (en banc) (same); accord L.A. News Serv. v. Reuters Television Intl, Inc., 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.); Video Pipeline, Inc. v. Buena Vista Home Entmt, Inc., 192 F. Supp. 2d 321, 333 (D.N.J. 2002) (defendant should not be able to hide behind the lawful actions and privileges extended to its retailer customers who have abided by the Copyright Act).

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Second, as Judge Wu explained, Aereokillers position is exactly the argument that Congress rejected in the 1976 Copyright Act, which overturned the Fortnightly case. See 392 U.S. at 398-99; ER 7. Before the 1976 Act, the Supreme Court had ruled that a cable company did not need a license to capture over-the-air broadcasts and retransmit them to subscribers because it was simply doing what viewers could have done for themselves. 392 U.S. at 399-400. In Fortnightly, the Supreme Court had reasoned that the community access television antenna in that case accomplished nothing more than individuals were entitled to accomplish on their own: If an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be performing the programs he received on his television set . . . . The only difference in the case of CATV is that the antenna system is erected and owned not by its users but by an entrepreneur. 392 U.S. at 400. Congress rejected that equivalency, reasoning that unlike individual viewers, cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and . . . copyright royalties should be paid by cable operators to the creators of such programs. See 1976 Report at 89. Thus, in the 1976 Act, Congress enacted the Transmit Clause and mandated that a retransmission

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service engages in a public performance, requiring a copyright license, when it retransmits broadcast programming to subscribers. See Capital Cities Cable, 467 U.S. at 709-10. Amici argue that Congress could not have enacted the Transmit Clause in response to Fortnightly because it drafted that provision in 1965 prior to the Supreme Court issuing the Fortnightly decision in 1968. Congress, however, 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. The Fortnightly litigation itself began in 1960. See 392 U.S. at 392. Early drafts of the copyright revision legislation contained the same Transmit Clause language ultimately enacted, reflecting that Congress determined early on that broadcast retransmission services should incur copyright liability. Congress, however, left no doubt that the basis for the Fortnightly decision was completely overturned in the 1976 Act. See 1976 Report at 87. Third, Aereokillers contention that its service is legal under Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984) because it allows viewers to record the programs Aereokiller illegally retransmits is truly offbase. Contrary to Aereokillers contention, its technology does not

perform[] exactly the same function as the Betamax in Sony. AOB at 22.

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A Betamax VCR performs the function of allowing people to record programming they receive on their televisions from authorized providers. Aereokillers technology performs the function of allowing Aereokiller to offer an internet retransmission service while claiming it somehow does not need to pay for a license. This case has nothing to do with the time-shifting found to be fair use in Sony namely, recording a single program, watching it one time, then erasing it. See 464 U.S. at 423 (defining time-shifting as the practice of recording a program to view it once at a later time, and thereafter erasing it); see also id. at 458 (Blackmun, J., dissenting) (timeshifting is the process whereby the user records a program in order to watch it at a later time, and then records over it, and thereby erases the program, after a single viewing). No court has ever recognized a fair use defense for a commercial retransmitter that retransmits entire live broadcasts to the public, and Sony certainly does not support a fair use defense in this case. Fourth, although Aereokiller seems to rely on Fox Broadcasting Co. v. Dish Network, LLC, --- F. Supp. 2d ---, 2012 WL 5938563 (C.D. Cal. Nov. 7, 2012) to support a fair use defense, that case is not on point and Aereokiller has completely misrepresented its facts and holdings. By way of example, (i) the motion resolved in that opinion sought only to enjoin Dishs unauthorized commercial-free video-on-demand service, not the Sling

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Adapter (id. at *5 n.10); (ii) the copyright claims at issue on that motion involved reproduction and distribution rights only, not the performance right (id. at *7-15); (iii) the opinion does not discuss whether any transmissions are private or public, because transmissions were not at issue since it was a reproduction right claim (see generally id.); and (iv) Cablevisions interpretation of the Transmit Clause was never even mentioned (see generally id.). II. The District Court Correctly Concluded That Each Of The Relevant Factors Supported A Preliminary Injunction. A. The District Court Correctly Found That Aereokillers Illegal Service Would Irreparably Harm The Broadcasters.

Judge Wu found that in the absence of an injunction, Aereokillers unlicensed internet retransmission service would irreparably harm the Broadcasters in four ways: (i) it would damage the Broadcasters ability to negotiate favorable retransmission consent agreements with cable, satellite, and telecommunications providers; (ii) it would damage the Broadcasters goodwill with their licensees; (iii) it would unfairly compete with the Broadcasters own internet distribution channels; and (iv) it would siphon viewers from platforms where advertising is measured for the purposes of advertising revenue calculation (e.g., Nielsen ratings), thereby harming the Broadcasters negotiating positions with advertisers. ER 7-8.

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These findings were squarely in line with numerous other cases holding unequivocally that the unauthorized retransmission of copyrighted television broadcasts over the internet irreparably harms the copyright owners. See, e.g., ivi, 691 F.3d at 285-87 (unauthorized streaming service would irreparably harm broadcasters by undermining retransmission fees, negotiations, and agreements, and reducing the value of advertisements); Aereo, 874 F. Supp. 2d at 397-400 (same); WPIX, Inc. v. ivi, Inc., 765 F. Supp. 2d 594, 617-620 (S.D.N.Y. 2011) (same), affd, 691 F.3d 275 (2d Cir. 2012); see also iCraveTV, 2000 WL 255989, at *8 (unauthorized streaming service would irreparably harm broadcasters); CBS Broad. Inc. v. FilmOn.com, Inc., No. 10-7532, ECF No. 49 (S.D.N.Y. Aug. 9, 2012) (enjoining unauthorized streaming service); accord WTV Sys., 824 F. Supp. 2d at 1012-15 (unauthorized movie-streaming service would irreparably harm content owners goodwill, relationships with licensees, and their overall ability to control the use and transmission of their Copyrighted Works). Judge Wu correctly concluded that these harms were irreparable because they are neither easily calculable, nor easily compensable. ER 8 (quoting WTV Sys., 824 F. Supp. 2d at 1013). Again, this holding was squarely in line with numerous other cases. See ivi, 691 F.3d at 285-87;

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Aereo, 874 F. Supp. 2d at 397-400; FilmOn.com, No. 10-7532, ECF No. 49 (S.D.N.Y. Aug. 9, 2012); iCraveTV, 2000 WL 255989, at *8; accord WTV Sys., 824 F. Supp. 2d at 1012-15. Aereokiller has failed to demonstrate that these findings were clear error. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1087 (7th Cir. 2008) (courts review irreparable harm as [they] do any finding of fact, for clear error.); see also Stuhlbarg Intl Sales Co. v. John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001) (district courts finding that plaintiff would suffer irreparable harm was not clearly erroneous). Aereokillers primary argument is that the district court should have found no infringement and therefore no irreparable harm. This argument is a non-starter because, as explained above, the district courts conclusion that Aereokiller was infringing the Broadcasters copyrights was correct. As to the courts actual findings on irreparable harm, Aereokiller challenges only the district courts conclusion that its illegal service would harm the Broadcasters retransmission consent negotiations, and not the other three types of irreparable harm found by the district court. Thus, because the other three types of irreparable harm are sufficient to uphold the

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injunction, the Court can affirm without even considering Aereokillers argument as to retransmission consent negotiations. Either way, Aereokillers argument that the district court should not have found irreparable harm to the Broadcasters retransmission consent negotiations is without merit. Aereokiller contends that the Broadcasters evidence on this point was speculative because the Broadcasters did not say exactly how much revenue they would lose if Aereokillers unlicensed internet retransmission service became a factor in retransmission consent negotiations. AOB at 32. Aereokillers argument misses the point of the irreparable harm inquiry. First, [t]he standard for injunctive relief requires a threat of

irreparable harm, not that irreparable harm already have occurred. Mullins v. City of N.Y., 626 F.3d 47, 55 (2d Cir. 2010); 11A Wright, Miller & Kane, Federal Practice & Procedure 2948.1 (2d ed. 1995) (injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis). Indeed,

[r]equiring a showing of actual injury would defeat the purpose of the preliminary injunction, which is to prevent an injury from occurring. Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990). For essentially this reason, in each of the cases cited above that considered preliminary

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injunction challenges to services that retransmitted broadcast programming over the internet, the courts based their findings of irreparable harm on the threat of injury to the Broadcasters intellectual property and their businesses without requiring them to wait for the challenged service to cause (further) actual injury. See ivi, 691 F.3d at 285-87; Aereo, 874 F. Supp. 2d at 397-400; FilmOn.com, No. 10-7532, ECF No. 49 (S.D.N.Y. Aug. 9, 2012); iCraveTV, 2000 WL 255989, at *8; accord WTV Sys., 824 F. Supp. 2d at 1012-15. Second, irreparable harm is an injury that cannot be remedied by a damage award alone. Rent-A-Center, Inc. v. Canyon Tel. & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). This includes damages [that] would be difficult to valuate. Id. The fact that damages are difficult to quantify makes them irreparable, not unduly speculative. Gilder v. PGA Tour, Inc., 936 F.2d 417, 423 (9th Cir. 1991). Accordingly, the Ninth Circuit has long held that intangible injuries, such as lost contracts and customers, and harm to [a companys] business reputation and goodwill qualify as irreparable harm. Stuhlbarg, 240 F.3d at 838; see also Rent-ACenter, 944 F.2d at 603; eBay, Inc. v. Bidders Edge, Inc., 100 F. Supp. 2d 1058, 1066 (N.D. Cal. 2000) (Harm resulting from lost profits and lost customer goodwill is irreparable because it is neither easily calculable nor

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easily compensable and is therefore an appropriate basis for injunctive relief.); accord Contl Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1105 (9th Cir. 1994) (The certain harm to Continental was to its power, not its purse . . . . There is certain harm to Continentals control of its own business, even though the harm to its profitability is unproven or perhaps immeasurable.); Credit Bureau Connection, Inc. v. Pardini, 726 F. Supp. 2d 1107, 1123 (E.D. Cal. 2010) (irreparable injury shown by evidence of blocking CBCs ability to form contracts with new customers and divert[ing] CBCs existing customers to Data Consultants for servicing). Indeed, when the district court in ivi found the exact same harms to be irreparable, the court noted that it was obvious that the absence of quantifiable injuries is precisely what makes them irreparable. 765 F. Supp. 2d at 620, affd 691 F.3d 275; see also id. at 618 (These losses are notoriously difficult to prove and nearly impossible to quantify, and accordingly are considered irreparable.); accord Aereo, 874 F. Supp. 2d at 398 (Harm of this sort has been accepted as irreparable based, at least in part, on the difficulty of proving or quantifying such damages[.]). Further, even if the injury inflicted on the Broadcasters were quantifiable, which it is not, Judge Wu also expressly found that given the extent of Defendants retransmissions, and the large statutory damages that may be available, it is

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unlikely that Defendants start-up companies would be likely to be able to satisfy the damage award. ER 8.7 B. The District Court Correctly Found That The Balance Of Hardships Favored An Injunction.

Judge Wu found that the balance of hardships favored an injunction because Aereokiller was an infringer and therefore cannot complain of the harm that will befall it when properly forced to desist from its infringing activities. ER 8 (quoting Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995)). This was the correct analysis. If Aereokillers service is infringing, then it cannot avoid an injunction on the ground that ceasing its infringing activities would hurt its business. Triad, 64 F.3d at 1338; see also Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 612 (1st Cir. 1988) (Where the only hardship that the defendant will suffer is lost profits from an activity which has been shown likely to be infringing, such an The Broadcasters do not rely on any presumption of irreparable harm that may flow from their demonstrating a likelihood of success on the merits of their copyright claims. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 998 (9th Cir. 2011). To the contrary, the Broadcasters proved with uncontroverted evidence all of the harms identified in their preliminary injunction motion including the impact on advertising and retransmission consent negotiations, damage to the Broadcasters efforts to develop a lawful internet distribution system through licensing, undermining the Broadcasters own web offerings and each has been found irreparable in one or more of the cases that has addressed the issues being litigated here. ER 1457-69.
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argument in defense merits little equitable consideration.) (quoting Helene Curtis Indus. v. Church & Dwight Co., Inc., 560 F.2d 1325, 1333 (7th Cir. 1977); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983) (in motion for preliminary injunction, district court should not consider the effect of the injunction on the infringers business). Aereokillers only argument on this issue is that it does not infringe, so the court should have found that the losses to its business from an injunction outweighed the irreparable harms to the Broadcasters that would occur if no injunction issued. Although Aereokiller argued below that an injunction would cripple its business, it submitted no evidence to the district court to support that claim. Aereokillers failure to submit evidence alone is fatal to Aereokillers balance of hardships arguments. See WTV Sys., 824 F. Supp. 2d at 1014-15 (rejecting defendants balance of hardships argument, in part, because it was made without any evidence); Cuviello v. City of Oakland, No. 06-5517, 2007 WL 2349325, at *8 (N.D. Cal. Aug. 15, 2007) ([T]he balance of hardship tips sharply in Plaintiffs favor given . . . Defendants failure to provide evidence showing any real harm likely to occur were the injunction granted.); AMP Inc. v. Foxconn Intl, Inc., No. 93-1162, 1994 WL 315889, at *4 (C.D. Cal. Mar. 7, 1994) (because

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defendant failed to provide evidence in support of its balance of hardships argument, it was impossible for the Court to discern the effect of the preliminary injunction on its overall business operations.). Moreover, as the ivi court noted, the harm to the Broadcasters from unauthorized retransmission of their copyrighted programming exceeds any harm that Aereokiller would suffer from being forced to stop its infringing activities. ivi, 691 F.3d at 287. C. The District Court Correctly Found That An Injunction Would Serve The Public Interest.

The Supreme Court has made clear that upholding copyright protection is in the public interest. Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2005). Here, Judge Wu found that because Aereokiller likely

infringed the Broadcasters copyrights, an injunction would serve the public interest. He explained, it is virtually axiomatic that the public interest can only be served by upholding copyright protections and correspondingly, preventing the misappropriation of skills, creative energies, and resources which are invested in the protected work. ER 8 (quoting WTV Sys., 824 F. Supp. 2d at 1015)). This conclusion is consistent with the Second Circuits careful analysis of the policy concerns relating to unauthorized internet retransmissions in ivi. As the ivi Court explained:
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Plaintiffs are copyright owners of some of the worlds most recognized and valuable television programming. Plaintiffs television programming provides a valuable service to the public, including, inter alia, educational, historic, and cultural programming, entertainment, an important source of local news critical for an informed electorate, and exposure to the arts. . . . Plaintiffs desire to create original television programming surely would be dampened if their creative works could be copied and streamed over the Internet in derogation of their exclusive property rights. 691 F.3d at 288 (internal citation omitted). Aereokiller contends that enjoining its illegal service undermines the public interest in technological innovation. AOB at 36. This argument misstates the facts. Aereokiller is not a technology innovator and the

injunction issued by Judge Wu does not ban any innovative technology. Aereokiller did not invent miniature antennas, routers, servers, transcoders and the like. This is not a case where the defendant is making a technology available that others can use to infringe, and where the Court has to evaluate whether holding the defendant secondarily liable for infringing acts by others would chill innovation. See, e.g., MGM Studios, Inc. v. Grokster, 545 U.S. 913, 928-29 (2005). This is a case where Aereokiller is using (or purports to be using) technology in a way it wrongly believes allows it to circumvent copyright law and retransmit copyrighted programming to the public without a license.
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Aereokiller posits a false choice when it argues that the public interest will not be served if its service is enjoined threatening (according to Aereokiller) the consumers interest in viewing broadcast programming in an important new and convenient way. AOB at 36. Copyright law

inherently balances two competing public interests assuring the broad accessibility of public works and rewarding and incentivizing creative efforts. See ivi, 691 F.3d at 287. An injunction in this case would serve both interests by protecting the copyright owners marketable rights . . . and the economic incentive to continue creating television programming[,] (id.), while also encouraging the production of creative work [and] ultimately serv[ing] the publics interest in promoting the accessibility of such works. MGM Studios, 545 U.S. at 961; ivi, 691 F.3d at 287. Indeed, even in Aereo, the court rejected the notion that the public interest is served by unfettered access. 874 F. Supp. 2d at 404. Moreover, enjoining Aereokillers unauthorized retransmissions would not deprive the public of access to internet streaming of copyrighted broadcasts. To the contrary, the evidence presented to Judge Wu

demonstrated that an injunction against Aereokillers unlawful service would facilitate the development of a lawful market for licensed distribution of the Broadcasters programming by cable and satellite providers and

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internet licensees, and over the Broadcasters own websites and internet services. ER 1461-64. For all of these reasons, an injunction would serve all of the public interests implicated by copyright law.8 See id.; WTV Sys., 824 F. Supp. 2d at 1015.

JOINDER IN THE ABC PARTIES CROSS-APPEAL ARGUMENTS The Fox Parties hereby join and incorporate by reference the arguments presented by the ABC Parties in support of the cross-appeal relating to the geographic scope of Judge Wus injunction.

CONCLUSION For the reasons stated above, this Court should affirm the district courts decision to enjoin Aereokillers unauthorized broadcast

retransmission service pending a final judgment, and extend the preliminary injunction nationwide.

Aereokillers purported reliance on SoftMan Prods. Co. LLC v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) is misplaced. In that case, Adobe attempted to characterize transactions involving its software products as licenses, rather than sales subject to the first use doctrine. See id. at 108889. The court was concerned about Adobes apparent attempt to expand its ability to control software prices through licensing. Id. at 1090-91. This case is vastly different. The Broadcasters make their broadcast television programming available over the internet and on-demand from a variety of licensed sources, and are working to expand consumer access to their content in these nascent markets.
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April 26, 2013

Respectfully Submitted,

By: ___/s Paul M. Smith___________ Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees and Cross-Appellants

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STATEMENT REQUESTING ORAL ARGUMENT Pursuant to Federal Rule of Appellate Procedure 34(a), the Fox Appellees and Cross-Appellants request that oral argument of this appeal be permitted. Oral argument will assist this Court in deciding the appeal.

April 26, 2013

Respectfully Submitted,

By: ___/s Paul M. Smith________ Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees And Cross-Appellants

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CERTIFICATE OF COMPLIANCE I certify that, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Ninth Circuit Rule 32-1, the foregoing Brief is proportionately spaced, has a typeface of 14 points or more, and contains 12,792 words.

April 26, 2013

Respectfully Submitted,

By: ___/s Paul M. Smith________ Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees And Cross-Appellants

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CERTIFICATE OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, counsel for the Fox Appellees and Cross-Appellants states that other than the four consolidated appeals and cross-appeals Case Nos. 13-55156, 13-55157, 13-55226, and 13-55228 there are no related cases pending in this Court.

April 26, 2013

Respectfully Submitted, By: ___/s Paul M. Smith________ Paul M. Smith Paul M. Smith JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 Richard L. Stone Julie A. Shepard Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Attorneys for the Fox Appellees And Cross-Appellants

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DktEntry: 44

Page: 75 of 75

9th Circuit Case Number(s) 13-55156, 13-55157, 13-55226 and 13-55228

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . 04/26/2013 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. Signature (use "s/" format) s/ Richard L. Stone

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CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)