Aereo Boston

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

HEARST STATIONS INC., d/b/a WCVB-TV,

Plaintiff,

v.

AEREO, INC.,

Defendant.

C.A. No. 1:13-CV-11649-NMG

PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY

On July 9, 2013, the plaintiff, Hearst Stations Inc., d/b/a WCVB-TV (“WCVB”), filed a

Motion for Preliminary Injunction (Dkt. No. 4) seeking to enjoin the defendant, Aereo, Inc.

(“Aereo”), from infringing WCVB’s copyrights (the “PI Motion”). On August 7, 2013, Aereo

filed its Opposition (Dkt. No. 41), and on August 23, 2013, WCVB filed its Reply (Dkt. No. 62).

Oral argument is scheduled for September 18, 2013.

Since the time of those filings, Judge Collyer of the District Court for the District of

Columbia issued an injunction in Fox Television Stations, Inc. v. FilmOn X LLC , Civil Action

No. 13-758 (D.D.C.) (“FilmOn X”). Because that decision directly addresses the issues

presently before this Court, a copy of that decision is provided with this Notice and is attached as

Exhibit A.

The FilmOn X decision is relevant to this Court’s analysis because:

• Although the defendant in that case is different, the Court expressly assumed thatthe services and technology used by that defendant were, for all relevant purposes,

the same as Aereo’s services and technology. See FilmOn X at 4–5 & n.4–n.6.

• The Court concluded that, under the unambiguous language of the Copyright Act,and further supported by the legislative history, the defendant violated the

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



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plaintiff broadcasters’ public performance rights through the provision of those

services and that technology. See id. at 24–28.

• The Court expressly rejected the argument, also asserted by Aereo here, that theuse of multiple, individual transmissions rendered performances private. See id.

at 27.

• The Court expressly rejected the Second Circuit’s interpretation of the TransmitClause of the Copyright Act for the reasons set forth in Fox Television Stations,

Inc. v. BarryDriller Content Sys., PLC , 915 F. Supp. 2d 1138 (C.D. Cal. 2012) ,

Judge Chin’s dissent in the Second Circuit, and WCVB’s PI Motion. See id. at 25n.11, 28 n.12.

• After finding in the plaintiffs’ favor on irreparable harm, the balancing of theharms and the public interest, the Court issued a nationwide preliminaryinjunction (except in the Second Circuit)

1

prohibiting the defendant from

retransmitting any of the plaintiffs’ programs without authorization. See id. at31–34.

CONCLUSION

The plaintiff, Hearst Stations Inc., d/b/a WCVB-TV, respectfully submits, for the Court’s

consideration of the pending PI Motion, the decision from the District Court for the District of

Columbia issued in Fox Television Stations, Inc. v. FilmOn X LLC , Civil Action No. 13-758

(D.D.C.), attached as Exhibit A.

1 The Court excluded the Second Circuit from the injunction because of the Second Circuit decision in the pending

Southern District of New York cases against Aereo. See id. at 34.




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Dated: September 6, 2013

Respectfully submitted,

HEARST STATIONS INC., d/b/a WCVB-TV

By its attorneys,

/s/ James D. Smeallie

James D. Smeallie (BBO #467380)

Joshua C. Krumholz (BBO #552573)

Brian G. Leary (BBO #548386)Elizabeth M. Mitchell (BBO #638146)

Holland & Knight LLP

10 St. James AvenueBoston, MA 02116

Telephone: (617) 523-2700

Facsimile: (617) 523-6850

Email: [email protected] [email protected]

[email protected]

[email protected]




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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above document filed through the ECF

system will be sent electronically to the registered participants as identified on the Notice of

Electronic Filing on September 6, 2013.

/s/ James D. Smeallie

James D. Smeallie

#25686353_v3


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