China Central Television v. Create New Technology HK Limited, 2:15-cv-01869

Background

CCTV/TVB licenses CCTV/TVB programming for U.S. retransmission via Authorized U.S. Providers; CCTV’s affiliate CICC licenses U.S. providers for CCTV’s Great Wall package; TVB USA licenses and controls U.S. IPTV/OTT rights; CNT sells TVpad devices delivering Asian programming over the Internet to U.S. customers; CNT operates TVpad Store hosting apps that enable access to infringing CCTV/TVB streams; Club TVpad and AMG market and sell TVpads in California; plaintiffs allege CNT, Club TVpad, and AMG facilitate infringement via the TVpad ecosystem; investigators observed multiple infringing TVpad Apps streaming CCTV/TVB content and CNT’s promotional activity; defendants were served but CNT did not appear while Club TVpad and AMG answered.
CNT’s TVpad devices use peer-to-peer and server-based streams to deliver unauthorized CCTV/TVB programming; CNT’s store and apps facilitate access to infringing streams; cease-and-desist letters were sent prior to filing, but infringement continued; plaintiffs seek a preliminary injunction to restrain ongoing infringement.
Plaintiffs hold registrations for the registered programs, giving presumptive ownership and exclusive rights to transmit over the Internet in the U.S.; infringing streams occur via both live/time-shift and VOD modes, streamed to large, partly unknown user communities; the infringement undermines plaintiffs’ license negotiations, revenues, goodwill, and market development for legitimate distribution.
Courts have previously recognized public-performance infringement via Internet retransmission to large communities and have granted injunctions in similar settings.
The court bases its analysis on the likelihood of success, irreparable harm, public interest, and balance of equities, and concludes that a preliminary injunction is warranted without bond.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Likelihood of infringement liability	CCTV ownership and exclusive rights in U.S. via Internet	CNT/TVpad defendants argue no direct/secondary infringement	Plaintiffs likely succeed on contributory and vicarious infringement
Irreparable harm	Ongoing unauthorized streaming harms profits, licenses, goodwill	No irreparable harm shown	Irreparable harm shown; injunction warranted
Public interest	Enforcing copyright serves public interest	Public interest balanced	Public interest supports injunction
Equities/bond	Injunction will not cause harm given infringement scale	Bond unnecessary	Balance favors plaintiffs; bond dispensed with

Key Cases Cited

Aereo, Inc. v. ABC, 134 S. Ct. 2498 (U.S. 2014) (public performance via Internet broadcasting to many users)
Warner Bros. Entertainment v. WTV Systems, Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011) (unauthorized Internet retransmission extends public performance rights)
BarryDriller Content Sys., PLC v. Young, 915 F. Supp. 2d 1138 (C.D. Cal. 2012) (sliding-scale injunctive relief and irreparable harm considerations)
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (sliding-scale approach to preliminary injunctive relief)
Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (reaffirmed four-factor test for preliminary injunctions)
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (U.S. 2006) (no automatic irreparable harm in copyright cases after eBay)