fox v. dish - reply brief of plaintiffs-appellants

No. 13-56818

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CffiCUIT

FOX BROADCASTING COMPANY, TWENTIETH CENTURY FOX FILM CORP., AND FOX TELEVISION HOLDINGS, INC.~

Plaintiffs-Appellants, v.

DISH NETWORK L.L.C., DISH NETWORK CORP., AND ECHOST AR TECHNOLOGIES, L.L.C.

Defendants-Appellees.

On Appeal from the United States District Court for the Central District of California

Case No. 12-cv-04529 District Judge Dolly M. Gee

REPLY BRIEF OF PLAINTIFFS-APPELLANTS PUBLIC REDACTED VERSION

Richard L. Stone Andrew J. Thomas David R. Singer Amy M. Galfegos JENNER & BLOCK LLP 633 West 5th St., Suite 3600 Los Angeles, CA 90071

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

Attorneys for Plaintiffs-Appellants Fox Broadcasting Company, Twentieth Century Fox Film Corp.,

and Fox Television Holdings, Inc.

Case: 13-56818 02/28/2014 ID: 8998313 DktEntry: 32 Page: 1 of 43

TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................... 1

II. THE DISTRICT COURT COMMITTED LEGAL ERROR WHEN IT HELD THAT THE EXISTENCE OF A LICENSING MARKET PRECLUDED INJUNCTIVE RELIEF ... ................... ........................ ....................................................... 4

III. THE DISTRICT COURT COMMITTED LEGAL ERROR BY FAILING TO RECOGNIZE THAT FOX' S LOSS OF CONTROL OVER ITS COPYRIGHTED WORKS WAS IRREPARABLE .... ..... ...... ............................................... 8

IV. THE DISTRICT COURT'S FACTUAL FINDINGS AND OTHER CONCLUSIONS WERE ILLOGICAL, IMPLAUSIBLE, AND UNSUPPORTED ......... ... ..... ... ........ ... ........ ...... 11

A. The District Court's Finding OfNo Harm To Advertising Was Illogical And Unsupported ............................... 11

B. The District Court Rejected Fox's Evidence Of Harm To Distribution Relationships Based On A Misquote .............................. ............ ............................... .............. 14

C. Slingboxes Are Not Relevant To Irreparable Harm ..................... 16

D. The District Court's Strained Attempts To Distinguish The Multiple On-Point Cases Resulted In Further Errors ....... ....................... ............................................. 17

V. DISH IS INFRINGING FOX' S COPYRIGHTS .................................... 21

A. Dish Anywhere Is An Unlawful Internet Streaming Service And Does Not Meet Cablevision's Controversial "Unique Copy" Exception .. .. ............... .................. 21

B. Dish - Not Its Subscribers - Transmits Fox' s Programs Over The Internet ............ ............................................. 24

VI. DISH IS BREACHING ITS LICENSE AGREEMENT .................... ..... 28

11


A. Dish Anywhere Is A Breach ..... ........... ............................. ............ 28

B. Dish's Inadmissible Parol Evidence Confirms The Parties Intended To Prohibit Sling ............................................... 30

C. Hopper Transfers Is A lso A Breach ................................ .............. 31

CONCLUSION ..... ................... ............................................................................ 32

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TABLE OF AUTHORITIES

Page(s) CASES

Active Video Networks Inc. v. Verizon Communications, Inc., 694 F.3d 1312 (Fed. Cir. 2012) ................................................... ............ ............. 8

Am. Broad. Cos., Inc. v. Aereo, Inc., 874 F. Supp. 2d 373 (S.D.N.Y. 2012) ....... ......... .......................... ............ .. ........ 20

Am. Broad. Cos. v. Aereo, Inc., No. 13-461 (U.S. Dec. 12, 2013), 2013 WL 6729880 .................. ... ........ .......... 24

Apple Inc. v. Samsung Elecs. Co., Ltd, 735 F.3d 1352 (Fed. Cir. 2013) ......................... .................. ............. ................... . 4

Ashwood Capital, Inc. v. OTG Mgmt., Inc. , 99 A.D.3d 1 (N.Y. App. Div. 2012) ............................................................. 29, 31

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ............................................ ....................................... ........... 7

Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) ......................................................................... 22, 26

Columbia Pictures Indus. , Inc. v. Prof'! Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989) .............................................................................. 23

Community Television of Utah LLC v. Aereo, Inc., No. 2:13CV910DAK, ---F. Supp. 2d ---, 2014 WL 642828 (D. Utah Feb. 19, 2014) .......................................................................... ........... ......... passim

eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) ..................................................................................... passim

EM! April Music, Inc. v. Garland Enterprises, LLC, No. DKC 11-3352,2012 WL 1986529 (D. Md. June 1, 2012) ............................ 7

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

IV


Fox Television Stations, Inc. v. FilmOn X, LLC, No. 13-758,--- F. Supp. 2d ---,2013 WL 4763414 (D.D.C. Sept. 5, 2013) .............................................. ........... ...................................... .. .. 5, 16, 22, 23

Guardian Life Ins. Co. v. Schaefer, 70 N.Y.2d 888 (1987) ................. ........... ............ ... ....................... ... .................... 31

Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001) ............................................................... ............... 30

Kemelhor v. Penthouse lnt'l, 689 F. Supp. 205 (S.D.N.Y. 1988) ... ............... .......................................... ......... 30

L.A. News Serv. v. Tullo, 973 F.2d 791 (9th Cir. 1992) .............................................. ... ........... ........ ... ... 3, 28

MR. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) ........................................................................ 11, 12

MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928 (9th Cir. 2011) .............................................................................. 28

MercExchange v. eBay, Inc., 500 F. Supp. 2d 556 (E.D. Va. 2007) ............................................... .................... 8

Namad v. Salomon, Inc., 74 N.Y.2d 751 (1989) ......................... ............... ................................................. 30

On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) ..................................................................... 26

Perfect I 0, Inc. v. Amazon. com, Inc., 508 F.3d 1146 (9th Cir. 2007) ............................................................................ 27

Pfizer Inc. v. Teva Pharmaceuticals USA, Inc., 429 F.3d 1364 (Fed. Cir. 2005) .............. ........... ............... ....................... ........... 17

Polymer Techs Inc. v. Bridewell, 103 F.3d. 970 (Fed. Cir. 1996) ............... ........... ...................................... ............. 8

Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 1351 (Fed. Cir. 2012) ........................................... ............. ....... ........... .. 9

v


R1AA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999) ...................................................................... 26, 27

Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) ................... ..................................................... ........... 9

Silverstein v. Penguin Putnam, Inc., 368 F.3d 77 (2d Cir. 2004) ............................ .......................... ............................. 7

Sony Corp. of Am. v. Universal Studios, Inc, 464 U.S. 417 (1984) ... ......... ............................ ......... ............ ........... .. ............. . 3, 26

Trustees of S. Cal. IBEW-NECA Pension Trust Fund v. Flores, 519 F.3d 1045 (9th Cir. 2008) .... ............ ... ..... ... ... ....................... ... .. .................. 30

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ................................................................. ............................. 7

Warner Bros. Ent't Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011) ....................................................... passim

Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101 (2d Cir. 2003) ............... ................................................................ 28

WPIXv. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) ........................................................................ passim

WP!Xv. ivi, Inc., 765 F. Supp. 2d 594 (S.D.N.Y. 2011) ................................................ 5, 16, 17, 20

STATUTES

17 U.S.C. § 101 .................................................................................................. 21, 25

17 U.S.C. § 106 ..................................................... ......... ............... ............ ........... .... 25

OTHER AUTHORITIES

2 Paul Goldstein, Goldstein on Copyright § 7. 7 .2, at 7: 168 (3d ed. Supp. 2013-1) .. ............................................................................................... .... 23

H.R. Rep. No. 94-1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 ........ .......... 27

Vl


Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cable) Vision, THE MEDIA INST. (April23, 2013) ............................................. 23

Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc. , 89 OR. L. REv. 505,532 (2010) ............................... 23

vn


I. Introduction

Everybody agrees that a copyright owner has the exclusive right to

control how, when, where, and by whom its creative works are exploited.

Otherwise, no sane person would spend hundreds of millions of dollars

producing high-quality television programs as Fox does here. The

cornerstone of Fox's business is its extensive, carefully-controlled

licensing of its content. Allowing unlicensed companies to stream

copyrighted programs over the Internet without authorization emboldens

others to follow suit, undermines the creation and distribution of

programming, and ultimately "threaten[ s] to destabilize the entire

industry." WPIX v. ivi, Inc., 691 F.3d 275, 286 (2d Cir. 2012) ("ivi IF').

An unbroken line of cases have enjoined unauthorized streaming

services for exactly this reason. Yet the district court brushed them all

aside and ruled that as long as Dish pays damages later, it may continue

streaming Fox's live programming over the Internet pending trial - even

though this is not just unauthorized but prohibited by Dish's contract with

Fox. The district court's rationale was that because there is a market for

streaming licenses, any harm to Fox is necessarily quantifiable and equal to

the value of a streaming license. This violates eBay, which prohibits courts

from categorically denying injunctive relief to copyright owners because

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they have licensed their works. eBay Inc. v. MercExchange, LLC, 547 U.S.

388, 393 (2006). This legal error standing alone warrants reversal.

Moreover, the district court's treatment of the licensing issue 1s

exactly backwards. The fact that Fox painstakingly carves up its copyright

licenses by territory, time window, and distribution platform (e.g., live, on

demand, television, Internet, etc.) is the best evidence of how Fox controls

its intellectual property. By refusing to enforce Fox's property rights, the

district court has imposed a compulsory license no different than forcing a

landowner to allow trespassers to travel across her property as long as they

pay a toll set by the court. That can't be right.

Dish spends a lot of pages pretending the issue here is whether

consumers can legally use standalone Slingboxes. This is why Dish uses

the term "Sling" in its brief to refer to Dish Anywhere, the actual subject of

this lawsuit. This rhe1torical sleight of hand should not confuse the Court.

Dish Anywhere is a service, launched in January 2103, that allows Dish's

14 million subscribers to pay an additional monthly fee so they can watch

real-time television on Dish's "Dish Anywhere" website or mobile

application. ER 153, 1546, 1548, 1719. Referring to this servtce

generically as "Sling" or a "place-shifting feature" does not change this

fact. A Sling box, by contrast, is a standalone piece of equipment, invented

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in 2005 and owned by less than one-half of one percent of the 289 million

Americans with televisions, that does not require an ongoing monthly

subscription with Dish or any other service provider.

Dish plays fast and loose with its language because it knows it has

no defense if the Court focuses, as it must, on the Dish Anywhere service

that is actually at issue. Hence, Dish peppers its brief with the absurd

accusation that Fox waited "eight years" to sue "Sling." RB 3, 31-32.

Dish Anywhere did not exist eight years ago; it launched in January 2013,

amidst a massive marketing campaign, and Fox amended its complaint and

sought an injunction two months later.

Whether Dish uses "Sling technology" or any other type of

technology to distribute Fox's signal is beside the point. Technology is just

a tool, and the same technology can be used in ways that infringe and ways

that don't. For example, a consumer can use a VCR to record a movie to

watch later - but a business that uses VCRs to make thousands of copies of

movies to sell is not going to get very far with a defense that "VCR

technology" was declared "legal" in Sony Corp. of Am. v. Universal

Studios, Inc., 464 U.S. 417 (1984). E.g., L.A. News Serv. v. Tullo, 973 F.2d

791, 797 (9th Cir. 1992). On the merits this is not a close case. The

district court should have preliminarily enjoined Dish.

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II. The District Court Committed Legal Error When It Held That The Existence Of A Licensing Market Precluded Injunctive Relief.

eBay holds that it is reversible error for a court to find no irreparable

harm simply because the plaintiff licensed its intellectual property to third

parties. 547 U.S. at 393. Because the district court did exactly this, it

should be reversed on this ground alone. Apple Inc. v. Samsung Elecs.

Co., Ltd, 735 F.3d 1352, 1370 (Fed. Cir. 2013) (reversing denial of

preliminary injunction because court's cursory analysis "hints at a

categorical rule that Apple's willingness to license its patents precludes the

issuance of an injunction").

Dish did not dispute that Fox's licensing business is a carefully

managed ecosystem of arrangements with distributors across various

platfonns, all of which contain numerous conditions that allow Fox to

maxuruze revenue streams and ensure consumers have a variety of

affordable choices. ER 227-231. Fox's entire business depends on the

ability to selectively parcel out its rights, and to control when, where, to

whom, and for how much it will license its content. ER 227.

When a rogue distributor or pirate streams broadcast programming

over the Internet without permission, it upends this model. The Second

Circuit described these banns in no uncertain tenns:

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The strength of plaintiffs' negotiating platform and business model would decline. The quantity and quality of efforts put into creating television programming, retransmission and advertising revenues, distribution models and schedules- all would be adversely affected. These harms would extend to other copyright holders of television programming. Continued live retransmissions of copyrighted television programming over the Internet without consent would thus threaten to destabilize the entire industry.

ivi II, 691 F.3d at 286.

The district court shrugged off these concerns and concluded that

because a licensing market exists for live streaming of television content,

any harm from Dish's infringement was necessarily calculable. ER 307.

This reasoning was expressly rejected by the Supreme Court in eBay. It is

also indefensible based on the unrebutted facts and near-universal judicial

recognition that in the unique context of broadcast television, the harms

caused by unauthorized streaming services are unquantifiable and

irreparable because they "affect the operation and stability of the entire

industry." See ivi II, 691 F.3d at 286; see also Fox Television Stations, Inc.

v .. BarryDriller Content Sys. PLC, 915 F. Supp. 2d 1138, 1147 (C.D. Cal.

2012) (preliminarily enjoining unauthorized streaming service); WPIX v.

ivi, Inc., 765 F. Supp. 2d 594, 617-620 (S.D.N.Y. 2011) ("ivi F') (same);

Community Television of Utah LLC v. Aereo, Inc., --- F. Supp. 2d ---, 2014

WL 642828, at *8 (D. Utah Feb. 19, 2014) (same); Fox Television Stations,

5


Inc. v. FilmOn X, LLC, ---F. Supp. 2d ---, 2013 WL 4763414, at *16, *17

(D.D.C. Sept. 5, 2013) (same); see also Warner Bros. Ent 't Inc. v. WTV

Sys., Inc., 824 F. Supp. 2d 1003, 1012-14 (C.D. Cal. 2011).

Dish contends the district court did not base its decision on the rule

disapproved by eBay, but instead "carefully evaluated the record" to

conclude that any harm to Fox was quantifiable. RB 14. The opinion does

not bear this out. The district court merely gestured toward a few examples

of licensed streaming services, recognized that they involved different

parties and different content, and then concluded anyway that "their

presence on the market suggests that the value of the 2013 Services - and

any alleged damage they cause between now and trial - can be calculated

in a sum certain for damages purposes." ER 307. This is precisely what

eBay dictates courts cannot do. The district court's decision clashes with

Supreme Court precedent and creates a split with the Second Circuit. It

must be reversed for these reasons alone.

The opinion below also creates a perverse incentive for copyright

owners to jealously guard their works from the public - lest licensing a

work one time be deemed an irreversible waiver of the right to prevent

anyone else from exploiting it. Judicial rules that punish licensing

undermine the animating purpose of copyright protection, which is to

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"promot[ e] broad public availability of literature, mustc, and the other

arts," Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 710 (1984), by

"rewarding the creators of copyrighted works," id., thereby providing an

"incentive" designed "to stimulate artistic creativity for the general public

good." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

Moreover, by denying a preliminary injunction, the district court

effectively imposed a compulsory license that cuts the heart out of Fox's

rights as a copyright owner. It effectively granted Dish the right - at least

through trial- to exploit Fox's programming in the exact manner that its

contract with Fox forbids in exchange for some royalty payment to be

determined later. Imposing a compulsory license "is acting in derogation

of the exclusive property rights granted by the Copyright Act to copyright

holders." ivi II, 691 F.3d at 281; accord Silverstein v. Penguin Putnam,

Inc. , 368 F.3d 77, 84 (2d Cir. 2004); EM! April Music, Inc. v. Garland

Enterprises, LLC, 2012 WL 1986529, at *5 (D. Md. June 1, 2012). For

this reason, compulsory licenses are typically narrow and only granted by

Congress. The district court was not empowered to grant Dish a right to

exploit Fox's works that Fox itself had chosen not to grant.

Dish tries to defend the district court's ruling by citing two cases

that supposedly hold the existence of a licensing market proves that harm

7


from infringement can be quantified. Dish's cases actually underscore

why this rule should not have been applied here. Active Video Networks

and MercExchange both involved patent owners who offered to license

their patents to the defendant numerous times before filing suit. See

ActiveVideo Networks Inc. v. Verizon Communications, Inc. , 694 F.3d

1312, 1339-40 (Fed. Cir. 2012); MercExchange v. eBay, Inc., 500 F. Supp.

2d 556, 569-73 (E.D. Va. 2007). L When a patent owner was willing to

allow the infringer to exploit the patented invention in exchange for a

license fee, it makes sense to say that the harm from infringement equals

the amount of the unpaid license fee. Here, by contrast, Fox carefully

limits the rights it grants to licensees, and it was not willing to license

Internet streaming rights to Dish. Because the facts here are the exact

opposite of the facts in the cases Dish cites, these cases cannot justify

affirming the district court's ruling.

III. The District Court Committed Legal Error By Failing To Recognize That Fox's Lo:ss Of Control Over Its Copyrighted Works Was Irreparable.

Ownership of a copyright is a property right that includes the "right

to exclude." Salinger v. Colting, 607 F.3d 68, 78, 82 (2d Cir. 2010).

1The third case Dish cites, Polymer Techs Inc. v. Bridewell, 103 F.3d. 970

(Fed. Cir. 1996), is not good law because it predates eBay and, in any event, the Federal Circuit in that case vacated the district court's denial of an injunction. !d. at 978.

8


Copyright owners like Fox "have the exclusive right to decide when,

where, to whom, and for how much they will authorize transmission of

their Copyrighted Works to the public." WTV, 824 F. Supp. 2d at 1012

(citations omitted). Thus, as Chief Justice Roberts recognized in eBay, the

long tradition of granting injunctions against the infringement of

intellectual property is "not surprising, given the difficulty of protecting a

right to exclude through monetary remedies that allow an infringer to use

an invention against the patentee's wishes." 547 U.S. at 395 (Roberts, C.J.,

concurring).

The district court erred by failing to recognize that the copyrighted

works Dish has misappropriated are Fox's property, and that losing control

of its property harms Fox in a way that is unquantifiable and irreparable.

When intellectual property is viewed in proper context - as property - the

problem with the district court's approach becomes apparent. If a

trespasser squats on a homeowner's property, "the axiomatic remedy for

trespass on property rights is removal of the trespasser." Presidio

Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 1351, 1362 (Fed.

Cir. 2012). What the district court did here was akin to saying the

trespasser could stay - as long as he pays rent.

9


The district court thought there was no irreparable loss of control

here because Fox and Dish have a contractual relationship, and Dish

Anywhere is only available to Dish subscribers. ER 309. But the loss of

control concept is not about controlling the number of people to whom

Dish streams Fox programs, it's about controlling whether Dish streams

any Fox programs at all. That Fox and Dish have a license agreement that

prohibits Dish from distributing Fox's live programming over the Internet,

and Dish is doing it anyway, is the best evidence of Fox's loss of control.

Dish's claim that the current agreement proves "these parties knew

exactly how to quantify the value of rights in Fox's content," RB 30,

misses the point entirely. The issue isn't the value of the rights that Fox

chose to grant Dish - it is the intangible value of Fox's right to control its

content by withholding other rights from Dish, and the unquantifiable cost

of soured relationships and lost opporrunities caused by Dish's

misappropriation of that content. E.g., ivi II, 691 F.3d at 285-86.

Dish' s main argument is that any consideration of the intangible

harm inherent in the loss of a copyright owner's control over its works

amounts to a presumption in the copyright owner's favor. RB 25. This is

wrong, since in many cases the plaintiff may not value the right of control,

for example, if he willingly licenses rights to all comers. See eBay, 547

10


U.S. at 396-97 (Kennedy, J., concurring) (identifying patent owners who

do not practice their patents but instead use them mainly to collect license

fees as an example of where any harm from infringement would be

compensable in damages). These are not the facts here. If a preliminary

injunction cannot issue on the facts of this case then one cannot issue in

any case where a copyright owner has previously licensed its works to

others. The opinion below must be reversed.

IV. The District Court's Factual Findings And Other Conclusions Were Illogical, Implausible, And Unsupported.

Dish labors to mischaracterize the district court's opinion as a ruling

built on a careful review of facts, then gloats that this Court's review must

be "limited and deferential." RB 18. In reality, the district court's key

factual conclusions are illogical, unsupported, and, in many cases, flatly

contradicted by the only record evidence on point. This decision was not a

valid exercise of the district court's discretion and cannot be affirmed.

MR. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).

A. The District Court's Finding Of No Harm To Advertising Was Illogical And Unsupported.

As Fox pointed out in its Opening Brief, the district court erred in

finding that Dish's disruption of Fox's ability to measure its advertising

viewership is calculable because entities besides Nielsen "adequately

11


capture trends in television viewing and, by extension, advertising value."

OB 50-54. There was no evidence that any of these entities are currently

measuring viewership on Dish Anywhere and Hopper Transfers, which

means there will be no way to later calculate how much viewership was

diverted from platforms measured by Nielsen. !d. at 50-51.

Dish responds glibly that as long as "someone, somewhere, is

capable of measuring" Dish Anywhere and Hopper Transfers viewership,

the loss is not irreparable. RB 42. No. To measure viewership of live

programs airing now, someone has to be actually measuring that

viewership now, as they air. That is not happening. Dish does not even

argue it is happening. It was clear error for the district court to hold that

viewership of live Fox programs on Dish Anywhere and of copies on

Hopper Transfers pending trial can be quantified, when it is undisputable

that nobody is measuring it pending trial.

The district court's reliance on the representation of Dish's expert

(Rapp) that "Nielsen has announced it will measure viewership delivered

through online connections beginning in fall 2013," ER 310, was also

clearly erroneous and contradicted by the evidence. The New York Times

article Rapp cited and the Court relied on clearly states that in 2013 Nielsen

would begin measuring only viewership on Internet-connected televisions -

12


i.e., "those households who are receiving broadband Internet and putting it

onto a television set. "2

The article clearly states that Nielsen will not be

measuring viewing on iPads, computers, and mobile devices, meaning that

most viewers watching Fox's live programming on Dish Anywhere will not

be counted.

Dish responds blithely that its expert was entitled to rely on

"hearsay," and scolds Fox for "flyspeck[ing]." RB 43. Hearsay is not the

issue. The issue is that the article Rapp quoted (and on which the district

court relied) says the opposite of what he claimed. Pointing this out is not

"flyspecking." Digging itself in deeper, Dish points to an announcement

on Nielsen's website and crows that "Rapp was right." RB 43. But the

announcement Dish cites actually says Nielsen plans to measure television

viewing on digital devices beginning in fall 2014, which confirms that

Nielsen did not start measuring this viewership in 2013, is not doing so

now, and will not do so until fall2014 at the earliest.3

Rapp was wrong.

2 http:l/mediadecoder.blogs.nytimes.com/2013/02/21/tvs-connected-to-the

intemet-to-be-counted-by-nielsen/? _php=true& _ type=blogs& _php=true& _ type=blogs& _ r= 1. 3

http://www.nielsen.com/us/enlnewswire/2013/any-way-you-watch-itnielsen-to-incorporate-mobile-viewing.html.

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B. The District Court Rejected Fox's Evidence Of Harm To Distribution Relationships Based On A Misquote.

According to Dish, the district court "carefully evaluated the record"

to conclude that "Fox presents no compelling evidence that other MVPDs

will demand rights that are yet to be established rather than wait to see the

result of this litigation before altering their contracts with Fox." ER 307.

But this conclusion was derived entirely from misquoting Ms. Brennan's

declaration in a manner that falsely attributes to Fox a position exactly the

opposite of what it had argued to the court. Specifically, the district court

stated, citing the Brennan declaration at paragraph 22, that "Fox contends

that Dish's competitor MVPDs will only 'demand the same rights or other

concessions' ifthe 2013 Services are found to be unlawful." !d.

Ms. Brennan's declaration does not say that Dish's competitors will

only demand rights or concessions if the 20 13 services are found to be

unlawful. See ER 235. That does not even make sense. If Dish's services

are found to be unlawful at the conclusion of this litigation, then Dish will

have to stop offering them. Dish's competitors will, logically, not need to

demand concessions at that point since an even playing field will have been

restored. This is important because the district court misread what Ms.

Brennan said in a way that made it seem she bad conceded any harms

would only occur after trial - when in fact she said the opposite. !d.

14


Dish ignores this critical error and contends the district court just

found Dish's paid expert more credible. But Rapp agreed that Fox's

negotiations with its cable and satellite (MVPD) partners would be

negatively impacted by Dish's streaming service. And he conceded that

"any Fox retransmission consent agreements that come up for renewal

prior to trial will result in negotiations that account for prevailing market

considerations" and will "embody consideration for any competitive

disadvantage". ER 874-75. If MVPDs face competition from Dish's

unlicensed streaming service, that is a "prevailing market consideration."

ER 875. If an MVPD demands rights or other concessions to mitigate the

risk of losing customers to Dish, that is "consideration for any competitive

disadvantage." !d.

To distract from its own admissions, Dish tries to amuse the Court

with an imaginary, tongue-in-cheek negotiation between Fox and an

MVPD. RB 36-37. Dish's hypothetical just illustrates that Dish's services

will impact Fox's negotiations and present Fox with the choice of either

accepting less favorable contract terms (often nonmonetary) or losing the

goodwill of its business partners. Negatively impacting negotiation

dynamics is irreparable harm, as multiple courts have held on identical

15


facts. E.g., ivi II, 691 F.3d at 285; BarryDriller, 915 F. Supp. 2d at 1147;

FilmOnX, 2013 WL 4763414 at *15-16.

Finally, Dish asserts that at oral argument in April 2013 Fox was

"unable to point to any actual harm that had materialized in the 11 months

since it filed this suit," as if this means something. RB 26. First, Dish

Anywhere had not yet launched when Fox first sued in May 2012. Second,

Fox's distributor negotiations -

have been palpably and negatively impacted smce the preliminary

injunction was denied, due to concerns Dish's streaming service puts them

at a competitive disadvantage.

Third, since these harms are by their nature intangible and

incalculable, Fox obviously cannot submit itemized lists of actual

manifested harms. As the ivi court recognized, a plaintiffs inability to

catalog actual harm at a preliminary injunction hearing does not disprove

the harm - it serves to underscore the incalculable and irreparable nature of

the harm. ivi I , 765 F. Supp. 2d at 620.

C. Slingboxes Are Not Relevant To Irreparable Harm.

Dish pounces on the district court's irrelevant statement near the end

of its opinion that Fox did not demonstrate irreparable harm from earlier

"Sling-enabled devices." ER 311. But an analysis of irreparable harm

16


focuses on harm caused by the alleged infringement - here, Dish's

unauthorized streaming service - and not harms caused by other people or

products. See ivi I, 765 F. Supp. 2d at 619 (rejecting argument that

S1ingboxes were relevant to whether unauthorized streaming services

caused irreparable harm).

Moreover, Dish admitted that people bought a

Sling-enabled device over the past 10 years, ER 927, and there is no way to

know how many of those are currently in use. By contrast, Dish (which

has 14 million subscribers) deployed over 2 million Hoppers in just a few

months and kicked off a multimillion dollar media blitz to promote its new

streaming service, including giving away iPads to new subscribers. ER

1534-40. A defendant cannot escape an injunction by pointing out that

others are also infringing - especially when they are doing so on a much

smaller scale. E.g., Pfizer Inc. v. Teva Pharmaceuticals USA, Inc. , 429

F.3d 1364, 1381 (Fed. Cir. 2005) ("Picking off one infringer at a time is not

inconsistent with being irreparably harmed .... Neither is first targeting

infringers whose sales dwarf the sales of other infringers.").

D. The District Court's Strained Attempts To Distinguish The Multiple On-Point Cases Resulted In Further Errors.

An unbroken line of cases holds that the unauthorized streaming of

live broadcast programming over the Internet irreparably harms the

17


broadcasters. None of these cases holds that the existence of a licensed

streaming market meant the plaintiffs' harms were compensable in

damages. The district court's attempts to distinguish these cases were

demonstrably wrong as a factual matter, and Dish's efforts to defend the

district court's reasoning fare no better.

First, Dish endorses the district court's statement that irreparable

harm was virtually undisputed in WTVand BarryDriller. ER 311, RB 34.

This is not true at all. The documents cited by the district court for this

proposition show on their face that irreparable harm was hotly contested in

both cases, and the defendant in BarryDriller appealed the district court's

irreparable harm finding.

Moreover, Dish's lawyers in this case are fully aware that the district

court's statement was not true, since they represented WTV in the earlier

litigation. See WTV's Opposition to Motion Picture Studio's Motion for

Preliminary Injunction, 2011 WL 4401800 (June 17, 2011) (showing the

Durie Tangri firm as counsel for WTV). Relying on evidence obtained

during discovery, they argued the same thing they argue here - namely,

that because the plaintiffs licensed digital downloads of their works to

18


iTunes, any harm could be calculated using those agreements as a

benchmark (id. at 14) - an argument the WTV court rejected.4

Second, the district court stated WTV, BarryDriller, and ivi II were

distinguishable because the plaintiffs there did not have existing license

agreements with the defendants. ER 307. But that is a distinction without

a meaningfuE difference, because Dish's license agreement prohibits it

from streaming Fox's programs over the Internet. Therefore, Dish is just

like the defendants in all the other cases: it is doing something it does not

have a license to do.

Third, the district court found WTV was distinguishable because

"their service was available to anyone with Internet access who could pay

the service's low fee, unlike here, where only paying Dish subscribers can

access the services." ER 309. But ivi was a subscription service available

only to paying subscribers. See ivi II, 691 F.3d at 277. And Aereo, another

subscription-based streaming service, has been found to cause irreparable

harm by two courts. See Community Television, 2014 WL 642828 at *1-2,

8; Am. Broad. Cos., Inc. v. Aereo, Inc., 874 F. Supp. 2d 373, 386, 396-99

4 Just this month yet another district court found irreparable harm based on

the same facts presented here where, again, the defendant was represented by Dish's lawyers, who vigorously disputed irreparable harm. Community Television, 2014 WL 642848 at *8.

19


(S.D.N.Y. 2012) ("Aereo f'). Moreover, virtually anyone in the United

States is capable of subscribing to Dish.

To the extent Dish offers up other grounds for distinguishing these

decisions, its distinctions likewise are illogical and contrary to law. For

example, Dish contends that "[i]n those cases, the court could not say, as

the district court did here, that the challenged features" - by "challenged

features" Dish seems to be referring to Slingboxes, which nobody is

challenging - have "been available on the market since 2005." RB 34.

Actually, in almost all of these other cases, the defendant argued that

because consumers use Slingboxes to watch television over the Internet,

there is no harm if the defendant operates a commercial service to

accomplish the same thing. And every other court has rejected this

argument as either wrong or irrelevant or both. See ivi I, 765 F. Supp. 2d at

619; BarryDriller, 915 F. Supp. 2d at 1145-46; Community Television,

2014 WL 642828 at *3, *5-*8; cf Aereo I, 874 F. Supp. 2d at 386, 396-99

(finding irreparable harm from Internet retransmission service despite

finding it to be the equivalent of a Slingbox).

Dish also defensively mocks Fox's evidence - accepted by all of the

other courts as credible and non-speculative - as "recycled" and

"practically begg[ing] for the back of the hand" because it describes the

20


same harms as in the other cases. RB 27-28. Well yes, of course the harms

are the same. All of those other cases were copyright infringement

lawsuits against companies that were streaming Fox's signal over the

Internet without permission, which is exactly what Dish is doing here. It

makes no difference that these cases involved "different technologies." RB

34-35. The technology the defendant uses to stream the programming does

not impact irreparable harm. Likewise, it is not a distinction, as Dish

claims, that the defendants in those cases streamed the programming

"without paying the plaintiff a dime." RB 35. Dish isn't paying anything

for streaming rights either.

V. Dish Is Infringing Fox's Copyrights.

A. Dish Anywhere Is An Unlawful Internet Streaming Service And Does Not Meet Cablevision's Controversial "Unique Copy" Exception.

Fox has the exclusive right to publicly perform its works, which

means to "transmit or otherwise communicate a performance or display of

the work ... to the public, by means of any device or process," even if the

performance is received "in separate places . . . or at different times." 17

U.S.C. § 101 (emphasis added). Courts have consistently held that a

service that retransmits live broadcast television to its subscribers over the

Internet publicly performs the programs. See ivi II~ 691 F.3d at 278;

21


BarryDriller, 915 F. Supp. 2d at 1143-46; FilmOnX, 2013 WL 4763414 at

*12-15; Community Television, 2014 WL 642828 at *7-8.

Dish relies on a narrow exception from Cablevision which held that

the service provider's transmissions of copyrighted programs were private

"[b ]ecause each . . . transmission is made to a single subscriber using a

single unique copy produced by that subscriber." Cartoon Network LP v.

CSC Holdings, Inc., 536 F.3d 121, 139 (2d Cir. 2008) (emphasis added);

RB 52. That does not apply here because Dish admits that when its

subscribers watch live television over the Internet on Dish Anywhere, they

are not watching separate copies. ER 387.

Moreover, Cablevision's reading of the Copyright Act has been

repeatedly rejected by courts, condemned as wrong by scholars, and is now

under review by the Supreme Court in the Aereo case. Community

Television, 2014 WL 642828 at *6 (Cablevision "changed the wording of

the Transmit Clause from reading 'members of the public capable of

receiving the performance' to 'members of the public capable of receiving

the transmission"'); BarryDriller, 915 F. Supp. 2d at 1144 (same);

FilmOnX, 2013 WL 4763414 at *10-*14 (same); 2 Paul Goldstein,

Goldstein on Copyright § 7.7.2, at 7:168 (3d ed. Supp. 2013-1) (same);

Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor

22


(Cable) Vision, THE MEDIA INST. (April 23, 20 13) (same)5; Jeffrey Malkan,

The Public Performance Problem in Cartoon Network LP v. CSC

Holdings, Inc. , 89 OR. L. REv. 505, 532 (2010) (same). The Columbia

Pictures case Dish cites involved totally different facts - a hotel renting

videodiscs to guests - and has since been distinguished from unauthorized

streaming services. BarryDriller, 915 F. Supp. 2d at 1146 (citing

Columbia Pictures Indus., Inc. v. Prof'/ Real Estate Investors, Inc., 866

F.2d 278, 282 (9th Cir. 1989)).

Neither Fox nor its counsel has ever admitted that Dish's Internet

streaming service is legal as Dish claims. RB 53-54. The hypothetical

question the Second Circuit asked Fox's counsel at the November 2012

Aereo oral argument specifically dealt with the sale of a standalone

"Slingbox," not the subscription-based Dish Anywhere monthly service,

which did not exist at the time. RB 53. A simple cite check will also

confirm that Dish's other attributions to Fox had nothing to do with Dish

Anywhere or even the underlying Sling technology. Reply Br. for Pet'rs,

Am. Broad. Cos. v. Aereo, Inc., No. 13-461 (U.S. Dec. 12, 2013), 2013 WL

6729880, at *4; En Bane Petition, 2013 WL 1623648, at *10 (April 15,

2013). In short, even if the "unique copies" exception identified by

5 www.mediainstitute.org/IPI/2013/042313.php.

23


Cablevision were good law, it does not apply here. Dish offers a garden-

variety Internet streaming service just like the one found illegal in ivi. ivi

II, 691 F.3d at 277-78.

B. Dish - Not Its Subscribers - Transmits Fox's Programs Over The Internet.

To escape liability for direct infringement, Dish says it is merely an

equipment provider and that its subscribers are the ones streaming Fox's

programs over the Internet to themselves. RB 47-49. Dish spews a

comically complex explanation of how the subscriber "commands" the box

to send a "second signal" over the Internet for viewing on Dish Anywhere.

See id. Yet Dish's user guides, manuals, and advertisements make clear

that the subscriber does nothing more than visit Dish's website and pick

which channel to watch, just like with regular TV or the now-enjoined

streaming services ivi and FilmOn. ER 153, 1546, 1548, 1719.

Dish (the service provider) admits that it does all of the work. It

sends the TV signals and copyrighted programs to the set top box (which it

leases to the subscriber), converts them to a new format, creates a secure

connection between the user's set top box and their remote computer or

device, and delivers the content to the consumer via the Internet so that it

can be viewed on the Dish Anywhere website or mobile app. RB 47.

24


Nonetheless, Dish assures the Court this is an "easy case" because

"[ w ]hen a customer decides to use Sling, the customer is the one sending

the program." RB 51. That isn't the law. "Deciding" to watch a program

using a service designed, maintained, operated, and marketed by a service

provider who charges hefty subscription fees does not make the customer

the transmitter of the program. If it did, then the provision of the Copyright

Act that gives a copyright owner the exclusive right to transmit a

performance of its work to the public, 17 U.S. C. §§ 101, 106(4), would be

a dead letter. Video-on-demand would not require a license because

nothing offered on-demand is transmitted until the customer selects what to

watch. Anyone could stream copyrighted programs and movies to the

public over the Internet without authorization, since nothing streamed over

the Internet is transmitted until the viewer selects what to watch. Cable and

satellite providers would stop taking licenses because nobody receives

anything on TV unless they decide to turn it on. The rule that Dish urges

this Court to adopt is crazy.

Indeed, no court anywhere has ever held that selecting a program to

6 watch makes the viewer the transmitter. OB 58-60. Even Cablevision

6 This Court did not adopt this rule when it affirmed the district court's

decision not to preliminarily enjoin PrimeTime Anytime. RB 48. That claim involved unauthorized copying, not a public performance.

25


rejected the argument that the viewer who presses play to receive a

transmission from a remote DVR server to her television "does" the

transmitting. Cablevision, 536 F.3d at 134 ("[O]ur conclusion ... that the

customer, not Cablevision, 'does' the copying does not dictate a parallel

conclusion that the customer, and not Cablevision, 'performs' the

copyrighted work. The definitions that delineate the contours of the

reproduction and public performance rights vary in significant ways."); see

also On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp.

787, 789 (N.D. Cal. 1991) (service that transmitted movies to hotel rooms

was liable for infringement; that the customer "initiate[ s] the transmission"

is "immaterial" and does not make the customer the transmitter); WTV, 824

F. Supp. 2d at 1009-10 (same).

None of the cas,es cited by Dish are relevant. Sony deals only with

the reproduction right, not the performance right, and the question of who

was "doing" the copying was not addressed because the case did not

involve a direct infringement claim. 464 U.S. at 462-64. Diamond

Multimedia is not a copyright infringement case, and the language Dish

quotes is dicta in which the court indicated that copying a music file to

render it portable - what the court referred to as "space-shift[ing]"' - was

consistent with a statute designed to give consumers the right to copy music

26


files. RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th

Cir. 1999). Perfect 10 held that providing an HTML link to an image of a

copyrighted photograph does not infringe the display right because in order

to infringe the display right the defendant must possess and display a fixed

copy of the photograph. Perfect 10, Inc. v. Amazon.com, Inc. , 508 F.3d

1146, 1161 (9th Cir. 2007). Perfect 10 had nothing to do with the

performance right or whether watching a program online makes the viewer

the transmitter.

Finally, Dish's argument that it is merely an equipment provider,

immune from public-performance liability, was expressly rejected when

Congress enacted the 197 6 Copyright Act to overrule cases that said the

same thing about community antenna services that made the same claim.

BarryDriller, 915 F. Supp. 2d at 1146 (summarizing legislative history and

how Congress recognized that a "commercial enterprise[]" cannot profit

from a service that exploits copyrighted material without paying a royalty)

(citing H.R. Rep. No. 94-1476, at 87-89 (1976), reprinted in 1976

U.S.C.C.A.N. 5659). Similarly, in Tullo, this Court distinguished between

a consumer's personal VCR use (arguably fair use) and a commercial

service - like Dish Anywhere - that uses equipment to profit from

protected works (direct infringement). 973 F.2d at 797.

27


VI. Dish Is Breaching Its License Agreement.

Under New York law, which governs this contract, Dish's breaches

can be enjoined. See, e.g., Wisdom Import Sales Co. v. Labatt Brewing

Co., 339 F.3d 101, 107-09 (2d Cir. 2003). Injunctive relief is also available

because Dish's breach of contract constitutes copyright infringement. Dish

calls this "absurd" (RB 44-45), but in a recent case ignored by Dish, this

Court said so: "We refer to contractual terms that limit a license's scope as

'conditions,' the breach of which constitute copyright infringement." MD Y

Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 939 (9th Cir. 2011); id. at

941 (requiring only a "nexus between the condition and the licensor's

exclusive rights of copyright.").

A. Dish Anywhere Is A Breach.

Dish claims the ''No-Internet" provision only "prohibits Dish from

substituting tihe internet for its satellite system as a means of delivering

Fox's broadcasts to subscribers." RB 58. The provision says no such

thing. It just says no distribution over the Internet. ER 1802, 1831.

Dish also claims that the clause stating

" means that Dish

could distribute Fox's signal over the Internet with "Sling technology." RB

58. That phrase is simply a typical assurance that the agreed-upon contract

28


restriction will not inadvertently curb any rights that fall outside the

restriction. Anyway, Dish has to

retransmit Fox's signal over the Internet usmg Sling or any other

technology. See ivi II, 691 F.3d at 283; BarryDriller, 915 F. Supp. 2d at

1143-46. Moreover, since the parties knew Sling technology existed but

djd not mention it, the contract cannot be read as containing such an

exemption. Ashwood Capital, Inc. v. OTG Mgmt. , Inc., 99 A.D.3d 1, 8

(N.Y. App. Div. 2012).

Even if Dish's subscribers were "doing" the transmitting - which

they aren' t, as explained above - Dish would still be in breach of the

contract provjsion barring it from authorizing its subscribers to retransmit

Fox's signal. ER 1800-01. Dish responds that it is not "authorizing" its

customers to send programs over the Internet. It is unclear what Dish

thinks "authorize" means: Dish Anywhere can only be accessed by

current, paying Dish subscribers (ER 309), and before using Dish

Anywhere, "a customer must be verified with a login and password[.]" ER

930. The djstrict court even found specifically that Sling users were

"authorized" by Dish. ER 309.

29


B. Dish's Inadmissible Parol Evidence Confirms The Parties Intended To Prohibit Sling.

Dish argues based on parol evidence that the '

Ill" clause in the No-Internet provision was really meant to allow Internet

streaming with Sling technology, even though the contract does not say

that. ER 10, 58. But " [p ]arol evidence is inadmissible if a contract is clear

on its face and sufficient alone to divine the intent of the parties." Namad

v .. Salomon, Inc., 74 N.Y.2d 751, 753 (1989); see also Trustees of S. Cal.

IBEW-NECA Pension Trust Fund v. Flores, 519 F.3d 1045, 1048 (9th Cir.

2008).7 Nor can Dish manufacture an ambiguity by claiming that's how it

understood the contract. Kemelhor v. Penthouse Int'l, 689 F. Supp. 205,

212-13 (S.D.N.Y. 1988). Moreover, since Dish drafted the ambiguous

language (ER 425), it must be construed against Dish. Guardian Life Ins.

8 Co. v. Schaefer, 70 N.Y.2d 888, 890 (1987).

Either way, Dish's parol evidence destroys its own claim. The

written correspondence and draft agreements show that on October 28,

7 Parol evidence is governed by state contract law. See Jinro Am. Inc. v.

Secure Investments, Inc. 266 F.3d 993 999 Cir. 2001 8

The contract also

ER 1813, 1825. This bars any claim based on an alleged intent that the parties failed to express in writing. Ashwood, 99 A.D.3d at 9.

30


2010, Dish sought to include the following language in the contract: ,.

ER 346-47.

ER 347.

(id. ) ,

(id.). In the end, the final agreement did not contain Dish's requested

language. !d. This means the agreement cannot be "interpreted" to include

Dish's requested language. Ashwood, 99 A.D.3d at 8.

Finally, the parties' joint press release announcing their amended

contract is irrelevant. The actual "joint" statement says nothing about Dish

Anywhere or Dish's Sling-enabled set top box. The reference to Dish's

Sling technology appears in the endnote after the parties' joint statement

under the header "About DISH Network." ER 347. Dish's decision to

promote a Sling-enabled DVR does not change the fact that the contract

prohibits Dish from streaming the Fox Network over the Internet.

C. Hopper Transfers Is Also A Breach.

Dish' s claim it does not "authorize" subscribers to copy programs

with Hopper Transfers for viewing outside the home is meritless. Dish

makes Hopper Transfers available to its subscribers, controls how the

service operates, and determines how many copies can be made for

31


viewing outside the home. ER 173, 1544, 1548, 1550. Dish says that

Hopper Transfers "lets customers move television recordings from the

DVR to an iPad for viewing without an internet connection .... such as on

a plane." ER 1544 (emphasis added). This is the definition of authorizing.

Dish also claims that "private home use" does not mean "private use

inside the home." RB 56. Instead, Dish argues that "'private home use"

really means "private noncommercial uses." ld. If that was what the

parties meant, they would have said so. "Private home use" must be given

its plain, ordinary meaning, i.e., copies used by Dish subscribers in their

private homes. Indeed, the Court need not look any further than Dish's

own Residential Customer Agreement where Dish expressly restricts its

own services to "Private Home Viewing," which Dish defmes as "solely

for viewing, use and enjoyment in your private home." ER 1742 (italics

added).

CONCLUSION

For the foregoing reasons, the district court's order denying a

preliminary injunction should be reversed.

February 28, 2014 Respectfully Submitted,

By: s/ Richard L. Stone Richard L. Stone

32


33

Richard L. Stone Andrew J. Thomas David R. Singer Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071


Attorneys for Appellants


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 Reply Briefiis

proportionately spaced, has a typeface of 14 points or more, and contains

6,986 words.



34

Richard L. Stone Andrew J. Thomas David R. Singer Amy M. Gallegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071




CERTIFICATE OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Counsel for Appellants states

that there are no related cases pending in this Court.

f ,ebruary 28, 2014 Respectfully Submitted,


35

Richard L. Stone Andrew J. Thomas David R. Singer Amy M. Galfegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071

Paul M. Smith JENNER & BLOCK LLP 1099 New York A venue, NW, Suite 900 Washington, DC 2000 1



CERTIFICATE OF SERVICE

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 February 28, 2014.

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.



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Richard L. Stone Andrew J. Thomas David R. Singer Amy M. Galfegos JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071




fox v. dish - reply brief of plaintiffs-appellants

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