Fox Television Stations, Inc. v. Barrydriller Content Systems, PLC
915 F. Supp. 2d 1138
C.D. Cal.2012Background
- Fox and related Fox/NBC/ABC Plaintiffs move for a preliminary injunction against Aereokiller and FilmOn entities for internet retransmission of their broadcast programming.
- Court adopts tentative final ruling and grants in part and denies in part the injunction; separate orders to issue.
- Parties’ dispute centers on whether Defendants’ system infringes the Plaintiffs’ exclusive rights by public performance/transmission of broadcast content.
- Defendants argue their Aereo-like architecture (individual user antennas/DVR) makes transmissions private, not public, and thus non-infringing under some circuits’ readings.
- Court limits the injunction geographically to the Ninth Circuit and sets a bond of $250,000, with terms to be issued in separate orders.
- Stipulations require representation about local antennae locations and locality of content delivery within each local DMA; web server and related infrastructure are within the locality; no backhaul through the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants infringe by public performance | Fox argues transmissions are public performances. | Aereokiller contends its unique-copy system mirrors private viewing per Cablevision/Aereo. | Plaintiffs likely to succeed on public-performance theory in Ninth Circuit. |
| Whether irreparable harm is shown | Foxshows irreparable harm to licensing, revenue, and relationships. | Not disputed that infringement could occur but no immediate irreparable harm shown. | Irreparable harm proven; injunctive relief warranted. |
| Balance of hardships and public interest | Injunctive relief protects copyright, licenses, and public interest in funded programming. | Injunction harms start-up; scale limited and reversible with appeal. | Public interest supports injunction; balance of hardships favors Plaintiffs. |
| Scope of injunction (geographic reach) | Nationwide injunction may be appropriate if circuits align. | Different circuit law (Cablevision/Aereo) counsels narrower relief. | Injunction limited to Ninth Circuit for comity. |
Key Cases Cited
- Cablevision Systems Corp. v. Digital Cable Sys., Inc., 536 F.3d 121 (2d Cir.2008) (public performance analysis; unique-copy transmission discussed; Ninth Circuit follows different path)
- Aereo, Inc. v. ABC, et al., 874 F. Supp. 2d 193 (S.D.N.Y.2012) (discussed as analogous system; issues of public vs. private transmission relied upon network architecture)
- Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir.2008) (transmission of public performance; unique copy analysis central to Cablevision logic)
- Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) (cable/antenna system distinction historically recognized in Copyright Act)
- Buck v. Jewell-La Salle Realty Co., 283 U.S. 191 (1931) (radio reception as non-public performance; early precedent contrasted)
- Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278 (9th Cir.1989) (portable viewing device principled distinction in proximity to transmission)
- On Command Video Corp. v. Columbia Pictures Indus., Inc., 777 F. Supp. 787 (N.D. Cal.1991) (early hotel-system transmission ruling; contrasted with Cablevision line of reasoning)
- Winter v. NRDC, 555 U.S. 7 (2008) (establishes standard for preliminary injunctions)
- WTV System, Inc. v. Brennan, 824 F. Supp. 2d 1003 (C.D. Cal.2011) (irreparable harm and public-interest considerations in injunctions)
- ivi, Inc. v. AOL Time Warner, Inc., 691 F.3d 275 (2d Cir.2012) (public performance of retransmitted content; not controlling on Aereo issue)