nbc studios v. dish networks complaint

7/31/2019 NBC Studios v. Dish Networks Complaint

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ROBERT H. ROTSTEIN (SBN 72452)rxr msk.comPA RICIA H. BENSON (SBN 60565)[email protected] PIERRE NOGUES (SBN 84445)'pngmsk.cornMITCHELL SILBERBERG & KNUPP LLP11 .377 W est Olympic BoulevardLos Angeles, California 90064-1683Telephone: (310) 312-2000Facsimile: (310) 312-3100Attorneys for P laintiffs ?NBC Studios LLC, Universal Network TelevisionLLC, Open 4 Business Productions LLC, andNBCUniversal Media, LLC

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CAUla 0453:. N i\itCOMPLAINT FOR:(1) COPYRIGHT INFRINGEMENT(2) INDUCEMENT OF COPYRIGHTINFRINGEMENT(3) CONTRIBUTORY COPYRIGHTINFRINGEMENT(4) VICARIOUS COPYRIGHTINFRINGEMENT

NBC STUDIOS, LLQ UNIVERSALNETWORK TELEVISION, LLC;OPEN 4 BU SINESS PRODUCTIONSLLC; and NBCUN1VERSAL M EDIA,LLC,Plaintiffs,

V.DISH NETWORK CORPORATION;DISH NETWORK L.L.C.,

Defendants.

COOMINGCOY 2

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Plaintiffs NBC Studios LLC, Universal Network Television LLC, Open 4Business Productions LLC and NBCUniversal Media, LLC, by their counsel,allege against Defendants DISH Network Corporation and DISH Network LL C(collectively DISH or Defendants):

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COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCEMENT, CONTRIBUTORY INFRINGEMENT,AND VICARIOUS INFRINGEMENT UNDER THE COPYRIGHT ACT

Case 2:12-cv-04536-DMG-FFM Document 1 Filed 05/24/12 Page 1 of 39 Page ID #:9


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NATURE OF ACTION1. DISH has created and is aggressively marketing as part of its

subscription satellite TV packages an unautho rized service that automatically andcompletely skips the advertising that is an essential elemen t of prime-timebroadcasting. Offered with its "Hopper" DVR, Dish's "PrimeTime Anytime" and"Auto Hop" services copy the entire prime-time schedules of all of the majornational broadcast networks on a w holesale basis and enable their customers towatch all of that programming on an entirely commercial-free basis. Yet, it is theadvertising that generates the revenue to support the enormously expensiveinvestment in the billions of dollars per year that creates the programs thatviewers want to watch. Indeed without the embedded advertising there would beno program stream at all. The U.S. broadcast networks cannot provide the news,sports and entertainment programming they have historically created and offered ifthe revenue-generating ads are systematically blotted out on an unau thorized basisby distributors like DISH.

2. In the face of this reality, DISH now m arkets its new service with thefollowing basic message: "Hate commercials? Dish creates commercial-free TVso you can save an hour each night! Now you can automatically skip commercialsin primetime TV- on ABC, CBS, FOX and NBC in HD." Ex. B. Under thecopyright law, however, DISH is simply not free for its own business andcompetitive advantage to take a broadcast network's primetime advertiser-supported programming stream and deliver it with an automatic commercial-skipping service that effectively strips out every single ad across-the-board. IfDISH seeks to deliver an on-demand service that provides playback of programswithout ads, then it must seek authorization to do so, with mutually-acceptableshared econom ic arrangements, rather than unilaterally appropriating thateconomic advantage to itself.

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3. Plaintiffs bring this action for preliminary and permanent injunctiverelief against Defendants' unlawful scheme to profit from an unprecedented andunauthorized new system for violating Plaintiffs' copyrights in prime-time,network television programming. Defendants market this infringing system inconnection w ith their satellite broadcast services and digital video recorder("DVR") called "the Hopper." As described more fully below, through theinfringing functions of the Hopper, all of Plaintiffs' prime-time, networktelevision programs (along with all of the prime-time shows aired on the othernational broadcast networks) are copied, on a con tinuous eight-day rolling basis,after which the customer can play it back with all ofthe commercials automaticallyskipped in their entirety, and create a permanent library of that programm ing usingthe Hopper's massive storage capabilities.

4. Plaintiffs are among the largest and most successful producers anddistributors of television programm ing in the United States and the world.Plaintiffs are engaged in the business of developing, producing, ancUor distributingtelevision programm ing for exhibition and dissemination, and of licensing thatprogramming to others. In addition to producing (and owning the copyrights in)numerous television programs, Plaintiff NBCUniversal Media, LLC ("NBCU")owns and operates the NBC Television Network ("NBC") and other televisionprogram services that deliver that programming to the American public.

5. The Copyright Act, 17 U.S.C. 101, et seq., provides Plaintiffs withthe exclusive rights to reproduce, adapt, distribute, and publicly perform anddisplay their copyrighted television programming. Plaintiffs exercise these rightsin an ever-expanding variety of ways, including commercially supported broadcasttelevision, syndicated television, Internet-based streaming and dow nload services,video-on-demand services, on-demand access via licensed cable and satelliteproviders, and on DVDs and Blu-Ray Discs. Due to the innovation of Plaintiffs

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and others, consumers have access to network television programming throughmore authorized avenues than ever before. Yet, through the unlawful functions ofthe Hopper, Defendants divert revenues generated from Plaintiffs' copyrights andare infringing, and threaten to infringe, Plaintiffs' rights to exploit theircopyrighted works in these legitimate markets. In doing so, Defendants deprivePlaintiffs of a fair return on their investments in creating and distributing some ofthe most valuable programming on television. Defendants' conduct is exactlywhat the copyright laws are intended to prevent.

6.he Hopper allows Defendants and their customers to infringePlaintiffs' copyrights through the following interrelated features: The Hopper provides a "PrimeTime Anytime" feature, which copiesall of the prime-time (i.e., Monday through Saturday, 8:00 p.m.- 11:00p.m., and Sunday, 7 p.m. 11 p.m.) TV programming aired on NBCand on the A BC, C BS and Fox television networks, every evening, onan 8-day rolling basis;

The Hopper provides what Defendants call the "Auto Hop" feature,which enables the customer to watch the copied Primetime Anytimeprogramming with all commercial advertising automatically skipped and as more fully detailed below, Defendants m arket and activelyencourage the use of Auto Hop for that purpose.

The H opper provides a memory capacity of two terabytes (i.e., 2,000gigabytes), which, Defendants boast, is capable of storing 2,000 hoursof recorded video, thus allowing the creation of large libraries ofprime time television. As Defendants themselves acknowledge, "noother company offers" such capacity.

7.hus, the Hopper effectively provides Defendants' customers with apremium commercial-free channel consisting, at any given point in time, of all of

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the copyrighted program ming that aired in prime time on a ll four nationalbroadcast networks in the past eight days, including w ithout limitation seriescurrently airing on NBC, such as 30 Rock, Dateline NBC, Law & Order SVU,Parks and R ecreations, Rock Center, Smash, The Office, and Whitney, along withthe ability to create huge commercial-free libraries of those works.

8. Plaintiffs have invested billions of dollars in their copyrighted content.The Hopper's unprecedented methods of copying will deprive Plaintiffs of themeans of payment for their works and erode the value of Plaintiffs' copyrightedprogramming. "Prime time" is the bloc of the television programming schedulethat attracts the most viewers, and advertisers therefore are willing to pay thehighest prices to have their commercials shown during this time. Televisionnetworks and local broadcast stations generally derive significant percentages oftheir advertising revenues from selling the right to advertise before, during orimmediately after the prime-time television programming airs. It is self-evidentthat Advertisers will not pay, or w ill pay less, to have their adve rtisements placedwithin and around Plaintiffs' television programming if the advertisements will beinvisible to viewers. Further, Plaintiffs recoup part of their substantial investmentsin creative programming by disseminating their prime-time programming, at apremium, in commercial-free formats, such as through on-demand televisionaccess, on-demand Internet access, and the sale of DVDs and Blu-Ray Discs.

9. The H opper directly undercuts these established and legitimatemarkets for paid access to Plaintiffs' programming. Moreover, the Hopperinterferes with Plaintiffs' efforts to make their prime-time program ming availableto consum ers for free through advertising-supported services, such as Internetstreaming websites. Views of such websites will decline if Defendants'subscribers have permanent access to commercial-free copies of all of Plaintiffs'prime-time shows. As a result, Defendants' unlawful conduct impairs the value of

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Plaintiffs' works and reduces the incentive for their creation and dissemination.Indeed, Defendants' unlawful conduct attacks the fundamental economicunderpinnings of television programming creation and delivery, and therefore thevery means by which Plaintiffs' copyrighted works are paid for. In this way,Defendants cause harm not only to Plaintiffs, but also to consumers.

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THE PARTIES10. Plaintiff NBC Studios LLC is a New York limited liability company

with its principal place of business at 100 Universal City Plaza, Universal City,California. Plaintiff Universal Network Television LLC is a Delaware limitedliability company with its principal place of business at 100 Universal City Plaza,Universal City, California. Plaintiff Open 4 Business Productions LLC is aDelaw are limited liability company with its principal place of business at 100Universal City Plaza, Universal City, California. Plaintiffs NBC Studios LLC,Universal Network Television LLC, and Open 4 Business Productions LLC are allindirect, wholly-owned subsidiaries of Plaintiff NBCUniversal Media, LLC, andare all engaged in, am ong other things, the production and distribution of televisionprograms.

11. Plaintiff NBCUniversal Media, LLC ("NBCU") is a Delaware limitedliability company with its principal place of business at 30 Rockefeller Plaza, NewYork, New York. NBCU, through its NBC News division, through the NBCNetw ork it owns and operates, and through its other subsidiaries, is engaged in,among other things, the production and distribution of television programs.

12. Plaintiffs are informed and believe, and therefore allege, thatDefendant DISH Network Corporation is organized under the laws of the State ofNevada and has its principal place of business in Englewood, Colorado. Plaintiffsare informed and believe, and therefore allege, that Defendant DISH Network LLC

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is a wholly ow ned subsidiary of D ISH N etwork Corporation, is organized underthe laws of the S tate of Colorado, and has its principal place of business inEnglewood, Colorado. Plaintiffs are informed and believe, and therefore allege,that each Defendan t was the agent, joint venture and/or employee of the otherDefendant, and in doing the things hereinafter alleged, each w as acting within thecourse and scope of said agency, employment and joint venture with the advanceknowledge, acquiescence, and subsequent ratification of the other Defendant.

13. Plaintiffs are informed and believe, and therefore allege, that DISHNetwork Corporation and DISH Network LL C operate the third largest paytelevision transmission system in the United States, servicing approximately 14million customers as of September 30, 2011.

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JURISDICTION AND VENUE14. This Court has subject matter jurisdiction under 28 U.S.C. 1331

and 1338, and under the C opyright Act, 17 U.S.C. 101 et seq.15. This Court has personal jurisdiction over Defendants, and venue is

proper in this Judicial District pursuant to 28 U.S.C. 1391(b). Defendantsconduct extensive comm ercial activities in this State, including in this JudicialDistrict. Further, a substantial part of the events or omissions giving rise to thislawsuit, as well as substantial injury to Plaintiffs, have occurred o r will occur inthis District as a result of Defendants' acts of copyright infringement andimpending acts of copyright infringement, and unfair com petition, as alleged indetail below. Venue is also proper in this Judicial District pursuant to 28 U.S.C. 1400(a) in that De fendants may be found in this District in light of their extensivecommercial activities in this District.

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FACTUAL BACKGROUNDFree Over-the-Air, Commercially Supported Broadcasting

16. NB C is one of the four major over-the-air television networks thattransmit programming to the American public via hundreds of free, local,terrestrial broadcast stations that carry the networks' content. The networks'content is also increasingly transmitted to the public by subsc ription-based cableand satellite companies, including Defendant DISH Network, which retransmit thecontent carried on local broadcast stations. The networks, including PlaintiffNBCU, both create and license copyrighted content largely entertainment, newsand sports programming on which the public has come to rely for informationand entertainment. The four major networks and their affiliated local stationscontinue to account for a large percentage of all television viewing in the U nitedStates.

17. Maintaining a nationwide system of free, over-the-air local televisionstations, which provide news, information, and entertainment programming tovirtually all Am ericans without any need to pay subscription fees, has been acrucial public-policy goal in the United States since the advent of television. Thecreation and acquisition of the copyrighted content that has come to define free,over-the-air television is made possible through comm ercial advertisements thatare shown in each program. Whether viewers watch programming for free over-the-air or through pay services (such as Defendants' service) that retransmitbroadcast signals, advertisements provide the primary means of payment for thecopyrighted programming that the public views. As alleged more fully below,Defendants' infringing system blocks the delivery of advertising to viewers andthereby deprives copyright owners of the means by which they are paid for theirworks. Defendants' conduct diminishes both the value of the works and theincentive to create and distribute original content over the medium. By

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undermining the engine by which content is produced, Defendants' systemthreatens to diminish the quantity and the quality of the programming Americanshave come to expect and demand.

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4Plaintiffs' Dissemination of Prime-Time Television Content

18. Plaintiffs' most valuable programming airs during "prime time,"which falls between the hours of eight p.m. and eleven p.m. Monday throughSaturday, and seven p.m. to eleven p.m. on Sunday. Plaintiffs own the UnitedStates copyrights in a substantial number of prime-time p rograms, includingsuccessful series currently airing on NB C, such as those listed in Paragraph 7above. Plaintiffs have registered or filed applications to register with the UnitedStates Copyright Office their copyrights in each of the representative worksidentified in the schedule attached hereto as Exh ibit A and incorporated herein bythis reference.

19. After a program airs on prime-time television, it is, in most cases,made available for viewing via other markets, including through on-demand accesson cable or satellite services; internet-based services such as iTunes, Hulu, andNetflix; mobile phone services; pay-per-view and location-based (e.g., airline andhotel) services; and portable media (e.g., DVDs and Blu-Ray Discs). Further, theprograms are often available very shortly after airing in prime time, w ith additionalofferings following in stages.

20. Plaintiffs have invested (and continue to invest) substantial sums o fmoney and effort each year to create and distribute television programs. Thepublic benefits from Plaintiffs' creative activities, as intended by the U.S.Constitution and the Copyright Act. Plaintiffs recoup their substantial investmentsin creative programming in a number of ways, including the following:

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Advertiser Supported Broad casts. National networks, includingNBC, and their local affiliates, derive substantial value by sellingadvertising time during their broadcast programming. In addition,broadcasting stations pay licensing fees to content prov iders likePlaintiffs by generating value from commercial advertisementsinserted in or adjacent to each program. The viewership ratingsgenerated by Nielsen Media Research ("Nielsen") include viewing ofcommercials during DVR and video-on-demand ("VOD") usageduring the first 3 days from the airing of a program the so-called"C3" rating but Nielsen does not credit such viewership for anyportion of a commercial that is skipped or fast-forwarded. Thus, if acommercial is automatically skipped in its entirety, it generates noratings and produces no revenue to support the creation anddissemination of the programming in which it was aired.

On-Dem and C able/Satellite Access. Plaintiffs also license theircopyrighted works for viewing by the public through (i) video-on-demand services offered by cable and satellite providers, in wh ich aviewer can choose to watch a particular program at any time of herchoosing, generally on an advertising-supported model (in which theadvertisements often cannot be skipped or fast forwarded) and/or (ii)pay-per-view delivery, in which a view er obtains one-time access to aparticular program, in return for paym ent of a fee for that access.

On-Demand Online Access. Plaintiffs earn revenue by p rovidingaccess to their copyrighted works via their websites, the websites oftheir affiliates, and the websites and services of licensees. Some ofthese models involve showing advertisements to consumers before,after, or during viewing. Often, these advertisements cannot be

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skipped or fast forwarded. Other models involve subscriptionpayments, payments for downloaded copies which are often free ofadvertisements or rental payments (for time-limited windows toview content).

Content On M ultichannel Services. Plaintiffs generate revenue bylicensing their copyrighted works for "syndicated" exhibition throughso-called "basic" non-broadcast television channels such as TBS,TNT and Lifetime. Syndication involves delivery of programmingthat already aired on broadcast stations at an earlier date. Theprincipal means by which non-broadcast channels derive revenues topay Plaintiffs for licensing of Plaintiffs' content are from the sale ofcommercial time to advertisers and from fees paid by distributors suchas cable systems and satellite carriers (who in turn receive monthlyfees paid by subscribers). Such carriers also pay to retransmitbroadcast signals.

Fixed Media. Plaintiffs generate substantial revenue from the sale orrental for home viewing of authorized copies of their copyrightedworks in various formats, including DVD and Blu-Ray Discs.Plaintiffs offer these form ats at various price points, w ith differentofferings providing different levels of access to content, including viain-home p layers for television viewing or via Internet or computeraccess through connected licenses resident on the discs. Theseformats typically do not include advertisements, other than occasional"trailers" at the beginning of a disc.

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Defendants' Infringing Service21. On or about March 15, 2012, Defendants made the Hopper DV R

available to its customers. The Hopper's "PrimeTime Anytime" optionautomatically records all prime-time programming on N BC, C BS, A BC, and Fox,every day, to the customers' DVR, which as alleged above, stores up to 2000 hoursof content. The prime-time programming, including that of Plaintiffs, isautomatically stored on the DVR for eight days and can be stored permanently.

22. On or about M ay 10, 2012, Defendants began offering a com panionservice, called "Auto Hop," which automatically skips commercials duringviewing.

23. The Hopper is thus specifically designed to function as a commercial-free, on-demand video delivery and librarying service. Defendants boast that theHopper is unlike any other DVR offered by a television service provider. On theirwebsite, an image from which is attached hereto as Exhibit B and incorporated byreference, Defendants refer to the Hopper as an "on-demand" service that permitsthe creation of comm ercial-free video "libraries" of copyrighted prime timecontent commercial free. For example, Defendants market the Hopper as follows:With the Hopper's exclusive feature, PrimeTime A nytimeTM , three

hours of RD primetime programming are available to you On D emandfor up to 8 days from initial air date. Plus you can save your favoriteprimetime content forever. You can also automatically skipcommercials in primetime TV ABC, CBS, FOX and NBC in HD .24. During an interview while demonstrating the Hopper, a representative

of Defendants stated: "I don't think you'd need Hulu or Hulu Plus after this." Inother words, Defendants tell their customers that the Hopper can be used as asubstitute for Internet-based on-demand services. Plaintiffs make their

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programming available on those services in advertising-supported, rental,purchase, and subscription models.

25. Defendants also tout (Ex. B.) The Hopper's ability to providecommercial-free, on-demand program libraries to their customers:

Hate commercials? DISH created commercial-free TV so you cansave an hour each night! Now you can automatically skipcomm ercials in primetime TV - on ABC, CB S, FOX and NB C in BD.Only on the Hopper. Only from D ISH.26. Vivek Khem ka, vice president of DISH Product Management,

described the infringing service as follows:With the Auto Hop capability of the Hopper, watching your favoriteshows commercial-free is easier than ever before. It's a revolutionarydevelopment that no other company offers and it's something that setsHopper above the competition. ... With Hopper, you have access toall primetime H D programs broadcast by the four major networks.Now you can watch m any of those shows comm ercial-free, with AutoHop. -DISH Press Release, DISH Introduces Commercial-Free TV W ith "Auto Hop,"

May 10, 2012.

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Irreparable Harm to Plaintiffs As a R esult of Defendants' Infringement27. Defendants' brazen copyright infringement seriously threatens

Plaintiffs' ability to earn revenue from their copyrighted works through existingand potential methods of dissemination. Unless enjoined, Defendants' illegalconduct will irreparably injure Plaintiffs in numerous ways that are incapable ofcalculation or redress through monetary damages. Defendants' unlawful schemewill also ultimately harm the public, because it will divert revenue from the

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creators and licensors of original programming to D efendants, thereby threateningto decrease the output of copyrighted works and the investment therein. Thethreatened harm to Plaintiffs includes the following:

Plaintiffs are paid for advertisements that air during broadcasts basedon viewership. If Defendants' customers do not view commercialsduring prime-time shows, Plaintiffs' most significant source ofrevenue will be diminished.

Plaintiffs earn license fees for the television content they produce. Ifthe advertising revenue stream from b roadcasting that content isimpaired, then the license fees that Plaintiffs receive for producedtelevision content will be diminished.

Plaintiffs license shows for syndicated runs on cable channels, whichtake place after the broadcast runs of the shows conclude. If viewersuse Defendants' service to collect commercial-free libraries of prime-time network shows for later viewing, the market for watching showsin syndication will be reduced.

Plaintiffs earn revenue from commercials shown during programsmade-available "on demand" for free to subscribers of cable andsatellite subscription services, both online and on television. Oftenthese commercials cannot be fast forwarded. Defendants' infringingservice will deter viewers from using such offerings.

Consumers increasingly view programs they missed when they firstaired on Internet websites operated by Plaintiffs and Plaintiffs'licensees, such as Hulu. These services are often advertisingsupported.. Defendants' customers will have little incentive to seekout online access to programming given that Defendants are providingit to them on dem and and com mercial free.

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Plaintiffs make commercial-free, permanent copies of works availableto consumers, both through Internet-based downloading services, suchiTunes and A mazon, and through the sale of fixed media formats.Defendants' provision of commercial-free, prime-time televisionlibraries to its customers will undercut the marke ts for Plaintiffslegitimate offerings.

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CLAIMS FOR RELIEFCOUNT I

(COPYRIGHT INFRINGEMENT IN VIOLATION OF THE COPYRIGHTACT, 17 U.S.C. 101, ET SEQ.)

28. Plaintiffs incorporate by reference each and every a llegation set forthin paragraphs 1 through 27, inclusive, as though fully set forth herein.

29. Plaintiffs are the copyright owners of the w orks listed in Exhibit A, aswell as many other motion pictures and television programs telecast in the UnitedStates, each of which contain a large num ber of creative elements who lly originalto Plaintiffs and wh ich are copyrightable subject matter under the laws of theUnited States.

30. Plaintiffs have obtained (or have app lied for) copyright registrationcertificates for each work listed in Exhibit A. In doing so, Plaintiffs have compliedin all respects with 17 U .S.C. 101, et seq. and all other laws governing federalcopyrights.

31. Each of the works listed in Exhibit A, has, with authorization ofPlaintiffs, exploited in strict conformity with the provisions of 17 U.S.C. 401and 409, et seq., and all other laws governing federal copyright.

32. DISH creates Primetime Anytime's "on demand library ofapproximately 100 hours primetime of TV shows" by recording, without

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authorization, all programming aired by the fou r national broadcast networksduring primetime hours every night. On information and belief, the programmingrecorded by DISH through the Primetime Anytime service consists exclusively ofcopyrighted network programming, including Plaintiffs' copyrighted content. Onfurther information and belief, Defendants' copying in connection with PrimeTimeAnytime occurs on a partitioned section of The Hopper's hard drive that is fullyunder Defendants' ongoing remote control. By creating and distributingunauthorized copies of Plaintiffs' works (including the works listed on Exhibit A)through PrimeTime A nytime in the m anner described above, D efendants areengaging in and imminently will engage in a vast number of direct copyrightinfringements, in violation of sections 106(1), 106(3) and 501 of the CopyrightAct, 17 U.S.C. 106(1), 106(3) and 501.

33. The foregoing acts of direct infringement by Defendants areunauthorized and unlicensed by Plaintiffs and are not otherwise permissible underthe Copyright Act. Plaintiffs did not consent to Defendants' copying.

34. These acts of infringement have been willful, intentional, andpurposeful, in disregard of Plaintiff's rights under the Copyright Act. Defendantsknow that their acts are infringing and intentionally or recklessly disregard the lawby their conduct.

35. These acts have caused and will continue to cause substantialirreparable harm that cannot fully be compensated or measured in money toPlaintiffs unless further infringement is enjoined and restrained by this Court.Plaintiffs have no adequate remedy at law because damages would be difficult toascertain and Plaintiffs should not be expected to suffer the blatant infringem ent.The balance o f equities favors Plaintiffs because Defendants could easily ceasetheir operation of the infringing services w hereas Plaintiffs' rights will bepermanently devalued if the infringing conduct continues. Finally, the public

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interest favors injunctive relief because the goals of the C opyright Act, includingincreased creation and output of creative works, will be underm ined by thepersisting infringements comm itted by D ISH N etwork Corporation and DISHNetwork LLC. Pursuant to 17 U.S.C. 502, Plaintiffs are entitled to preliminaryand perm anent injunctions prohibiting further infringements of Plaintiffs'copyrights.

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COUNT II(INDUCEMENT OF COPYRIGHT INFRINGEMENT IN VIOLATION OF

THE COPYRIGHT ACT, 17 U.S.C. 101, ET SEQ.)36. Plaintiffs incorporate by reference each and every allegation set forth

in paragraphs 1 through 31 , as though fully set forth herein.37. Users of The Hopper's PrimeTime Anytime feature who record all of

Plaintiffs' prime-time shows and use the The Hopper's Auto Hop feature toautomatically skip commercials otherwise contained in those recordings infringePlaintiffs' exclusive reproduction rights under section 106 of the C opyright Act, 17U.S.C. 106(1).

38. Users of The Hopper's PrirneTime Anytime feature who record all ofPlaintiffs' prime-time shows and who store said recordings permanently or for longperiods of time for commercial-free multiple viewings at times of their choosinginfringe Plaintiffs' exclusive reproduction rights under section 106 of theCopyright Act, 17 U.S.C. 106(1).

39. Plaintiffs have not authorized such persons to engage in such acts orconsented to such acts.

40. Defendants have induced the infringing acts of their customersdescribed above, in violation of sections 106 and 501 o f the Copyright Act, 17U.S.C. 106 and 501. Defendants provide The Hopper and its PrimeTime

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Anytime and Auto Hop features with the object of promoting their use forinfringement.

41. Defendants' conduct demonstrates Defendants' purposeful promotionof infringement. Among other things:

Defendants have marketed The Hopper expressly for copying andcreating libraries of Plaintiffs' works and then viewing themcomm ercial free.

Defendants' marketing efforts have included targeting known marketsfor infringement, including consumers who wish to obtain access tocomm ercial-free programming without payment and consumers w howish to avoid paying market prices for permanent copies ofcommercial-free programs.

Defendants have expressly marketed their services as substitutes forlicensed methods of accessing Plaintiffs' works, including Hulu.comand other video-on-demand services.

Defendants have refused to use readily available technological meansto limit or prevent infringement by their customers. In fact,Defendants expressly designed their services to facilitate infringementand make it as easy as practicable to accom plish infringing acts.

42. Defendants' inducement of their customers' infringement is, and at alltimes has been, willful, intentional, and purposeful, in disregard of Plaintiff's rightsunder the Copyright Act. Defendants know that their acts are inducing infringingconduct. Defendants intentionally or recklessly disregard the law by their conduct.Plaintiffs have not authorized or consen ted to Defendants' conduct.

43. Defendants' acts have caused and will continue to cause substantialirreparable harm that cannot fully be compensated or measured in money toPlaintiffs unless further infringem ent by Defendants is enjoined and restrained by

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this Court. Plaintiffs have no adequate remedy at law because damages would bedifficult to ascertain and Plaintiffs should not be expected to suffer Defendants'blatant infringement. The balance of equities favor Plaintiffs because Defendantscould easily cease their operation of the infringing services whereas Plaintiffs'rights will be permanently devalued if the infringing conduct continues. Finally,the public interest favors injunctive relief because the goals of the Copyright Act,including increased creation and output of creative works, w ill be underm ined bythe persisting infringements committed by Defendants' customers. Pursuant to 17U.S.C. 502, Plaintiffs are entitled to preliminary and perm anent injunctionsprohibiting further infringements of Plaintiffs' copyrights.

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COUNT III(CONTRIBUTORY COPYRIGHT INFRINGEMENT IN VIOLATION OF

THE COPYRIGHT ACT, 17 U.S.C. 101, ET SEQ.)44. Plaintiffs incorporate by reference each and every allegation set forth

in paragraphs 1 through 31 , inclusive, and 37 through 39, as though fully set forthherein.45. By participating in, facilitating, assisting, enabling, m ateriallycontributing to, and encourag ing the infringing reproductions of Plaintiffs' worksdescribed above in paragraph s 37 through 39, w ith full know ledge of their illegalconsequences, and with the ability to take simple m easures to prevent or limitinfringement, De fendants are contributing to infringemen ts of Plaintiffs'copyrighted works, in violation of sections 106 and 501 of the Copyright Act, 17U.S.C. 106 and 501. Defendants make the infringement described above inparagraph s 37 -39 possible and p rovide the site and facilities for the infringements.

46. Defendants know or have reason to know of the actual or imm inentinfringement of Plaintiff's copyrights. Indeed, on information and belief,

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Defendants monitor their customers' infringing activity and technologically andpersonally assist their customers throughout their illegal acts. DISH Networks'service agreement with its customers states that it collects information regarding"the programming service options [customers] have chosen." The agreement alsostates: "When you use our interactive or other transactional television services, thesatellite system autom atically collects certain information on your use of theseservices."

47. Defendants' contributions to their customers' infringement have beenwillful, intentional, and purposeful, in disregard of Plaintiff's rights under theCopyright Act. Defendants know that their acts are contributing to infringingconduct and D efendants intentionally or recklessly disregard the law by theirconduct. Plaintiffs have not authorized or consented to Defendants' conduct.

48. Defendants' acts have caused and will continue to cause substantialirreparable harm that cannot fully be compensated or measured in money toPlaintiffs unless further infringemen t by Defendants is enjoined and restrained bythis Court. Plaintiffs have no adequate remedy at law because damages would bedifficult to ascertain and Plaintiffs should not be expected to suffer Defendants'blatant infringement. The balance of equities favors Plaintiffs because Defendantscould easily cease their operation of the infringing services wh ereas Plaintiffs'rights will be permanently devalued if the infringing conduct continues. Finally,the public interest favors injunctive relief because the goals of the Copyright Act,including increased creation and output of creative works, w ill be undermined bythe persisting infringements committed by Defendants' customers. Pursuant to 17U.S.C . 502, Plaintiffs are entitled to preliminary and perm anent injunctionsprohibiting further infringements of Plaintiffs' copyrights.

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COUNT IV(VICARIOUS COPYR IGHT INFRINGEMENT IN VIOLATION OF THE

COPY RIGHT A CT, 17 U.S.C. 101, ET SEQ.)49. Plaintiffs incorporate by reference each and every allegation set forth

in paragraphs 1 through 31, inclusive, and 37 through 39, as though fully set forthherein.

50. Defendants have the right and ability to supervise and control theinfringing conduct of their customers described above in paragraphs 37 through 39.DISH Networks' contract with their customers states:

We may add, delete, rearrange and/or change any and allprogramming, programming packages and other Services that weoffer, as well as the prices and fees related to such programm ing,programming packages and Services, at any time, including withoutlimitation, during any term commitment period to which you haveagreed.51. Defendants' regular involvement in their customers' copying is an

indispensable link in such infringing conduct. Defendants control their customers'ability to record prime-time content using the Primetime Anytime feature. Inaddition, Defendan ts go to great lengths and efforts to enable their custom ers toskip entire commercial segments. On information and belief, in order to achievethis goal, Defendants must study the shows that are transmitted and "push" certaindata to the Hopper devices resident in the homes of customers. AbsentDefendants' conduct, customers simply could not automatically skip commercials.

52. On information and belief, all of the infringing activity is activelymonitored by Defendants. DISH Networks' service agreement with its customersstates that it collects information regarding "the program ming service options[customers] have chosen." The agreement also states: "When you use our

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10111213141516171819202122232425262728 21




22/39

interactive or other transactional television services, the satellite systemautoma tically collects certain information on your use of these services."

53. Defendants also receive a direct financial benefit from theinfringement described above in paragraph 37 through 39 above. Plaintiffs areinformed and believe, and therefore allege, that Defendants have attracted,obtained and retained customers as a result of its infringing offerings. ThePrimeTime A nytime and A uto Hop features constitute draws to Defendants'services. Defendants actively advertise the infringing capabilities of The Hopper.Defendants also receive subscription payments from customers who possess TheHopper.

54. Defendants' refusal to stop or limit its customers' infringements hasbeen willful, intentional, and purposeful, in disregard of Plaintiff's rights under theCopyright Act. Plaintiffs have not authorized or consented to Defendants'conduct.

55. Defendants' acts have caused and will continue to cause substantialirreparable harm that cannot fully be compensated or measured in money toPlaintiffs unless further infringemen t by Defendants is enjoined and restrained bythis Court. Plaintiffs have no adequate remedy at law because damages would bedifficult to ascertain and Plaintiffs should not be expected to suffer Defendan ts'blatant infringement. The balance of equities favor Plaintiffs because Defendantscould easily cease their operation of the infringing services whereas Plaintiffs'rights will be permanently devalued if the infringement continues. Finally, thepublic interest favors injunctive relief because the goals of the Copyright Act,including increased creation and output of creative works, will be underm ined bythe persisting infringements committed by Defendants' customers. Pursuant to 17U.S.C . 502, Plaintiffs are entitled to preliminary and perm anent injunctionsprohibiting further infringements of Plaintiffs' copyrights.

23

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PRAYER FOR RELIEFWHEREFORE, Plaintiffs pray that this Court enter judgment in their favor

and against Defendants, and each of them, as follows:(a) On Counts I through IV, preliminarily and permanently enjoin,

pursuant to 17 U .S.C. 502, Defendants, their respective officers, agents, servants,employees, and those persons in active concert or participation with Defendants, orany of them, from inducing infringement or directly, contributorily, and/orvicariously infringing by any means, including but not limited to specifically inconnection with The Hopper's PrimeTime Anytime and Auto Hop features,Plaintiffs' exclusive rights under the Copyright Act, including, but not limited toany of Plaintiffs' rights in any of the works listed on Exhibit A, and from licensingany other person to do the same;

(b) award Plaintiffs statutory damages in accordance with 17 U.S.C. 504 and other applicable law;

(c) award Plaintiffs costs and reasonable attorneys' fees in accordancewith 17 U.S.C. 505, and other applicable law; and

(d) award P laintiffs such further and add itional relief as the Court m aydeem just and proper.

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1011

12131415161718

DA1ED: May 24, 2012 ROBERT H. ROTSTEINPATRICIA H. BENSONJEAN PIERRE NOGUESMiTdI LL SILBERBERG & KNUPP LLP

OT "1E1Attorneys for Plaintiffs,NBC Studios LLC, Universal NetworkTelevision LLC Open 4 Bu siness ProductionsLLC, and NB CUniversal Media, LLC,

19202122232425262728 23




24/39EXHIBIT A



25/39

EXHIBIT A SCHEDULE OF W ORKS

1. The Return of Avery Jessup, 30 Rock (application for copyright registration filed May18, 2012) - NBC Studios LLC.

2. What Will Happen to the Gang Next Year?, 30 Rock (application for copyrightregistration filed May 18, 2012) - NBC Studios LLC.3. BeeWare, Grimm (copyright registration no. PA 1-765-480, Nov. 23, 2011) - Open 4Business Productions LL C.4. Three Coins in a Fuchsbau, Grimm (copyright registration no. PA 1-778-887, Mar. 8,2012) - Open 4 Business Productions LLC.5,lumed Serpent, Grimm (copyright registration no. PA 1-780-055, Mar. 16, 2011) - Open4 Business Productions LLC.6. Island of Dream s, Grimm (ap plication for copyright registration filed Ap ril 4, 2012) -Open 4 B usiness Productions LLC.7. Theatre Tricks, Law & Order SVU (copyright registration no. PA 1-774-128, Jan. 26,2012) - Universal Network Television LLC.8. Trivia, The Office (copyright registration no. PA 1-774-146 , Jan. 26, 2012) - UniversalNetwork Television LLC.9. Jury Duty, The Office (copyright registration no. PA 1-776-312, Feb. 13, 2012) -Universal Network Television LLC.10. Special Project, The Office (copyright registration no. PA 1-775-976, Feb. 16, 2012) -Universal Network Television LLC.11. Tallahassee, The Office (copyright registration no. PA 1-77-493, Feb. 29, 2012) -Universal Network Television LLC.12. Pawnee Rangers, Parks and Recreation (copyright registration no. PA 1-756-487, Oct. 20,2011) - Open 4 Business Productions LLC.13 . The Comeback Kid, Parks and Recreation (copyright registration no. PA 1-774-147, Jan.26, 2012) - Open 4 Business Productions LLC.14. Win, Lo se, or Draw , Parks and Recreation (application for copyright registration filedMay 18, 2012) - Open 4 Business Productions LLC.15. Bombshell, Smash (application for copyright registration filed May 18, 2012) - NBCStudios LLC.

ExhibiztPage



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16. Private Parts, Whitney (copyright registration no. PA 1-773-957, Jan. 13, 2012) - NBCStudios LLC.17. 48 Hours, Whitney (copyright registration no. PA 1-777-488, Feb. 29, 2012) - NBCStudios LLC.18. Mad Wom en, Whitney (copyright registration no. PA 1-777-464, Feb. 29, 2012) - NBCStudios LLC .19. Dateline NBC 5/18/12 (application for copyright registration filed May 24 , 2012) NBCU niversal Media LLC

2 Axhibit,

Page



27/39EXHIBIT B



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36/39

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

This case has been assigned to District Judge Ronald S. W. Lew and the assigneddiscovery M agistrate Judge is Frederick F. M urmn.The case number on all documents filed with the Court should read as follows:

CV12- 4536 RSWL (FFM.x)Pursuant to Gen eral Order 05-07 of the U nited States District Court for the Cen tralDistrict of California, the Magistrate Judge has been designated to hear discovery related

motions.

All discovery related motions should be noticed on the calendar of the Magistrate Judge

NOTICE TO COUNSELA copy of this notice must be served with the summons and complaint on all defendants (if a removal action isfiled, a copy of this notice must be served on all plaintiffs).Subsequent documents must be filed at the following location:[X] Western Division312 N. Spring St., Rm. G-8Los Angeles, CA 90012

fi Southern Division411 West Fourth St., Rm. 1-053Santa Ana, CA 92701-4516II Eastern Division3470 Twelfth St., Rm. 134Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03106) NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVER Y



37/39

NBC STUDIOS, LLC; UNIVERSAL NETWORKTELEVISION, LLC; OPEN 4 BUSINESSPRODUCTIONS LLC and NBCUNIVERSALMEDIA, LLCPLAINTIFF(S)

V.DISH NETWORK CORPORATION; DISHNETWORK L.L.0

CASE NUMBER

'

r 46, Er

SUMMONS

SY\i

DEFENDANT(S).

MAY 24 2012Dated: y:Clerk, U.S. DistriA Co rtgAIPLITIVr e rk

ROBERT H. ROTSTEIN (SBN 72452) [email protected] H. BENSON (SBN 6( 35) [email protected] PIERRE NOGUES (SBN 84445) [email protected], SILBERBERG & KNUPP LLP11377 West Olympic Blvd.Los Angeles, CA 90064-1683(310) 312-2000UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

TO: DEFENDANT(S):A lawsuit has been filed against you.Within 21 days after service of this summons on you (not counting the day you received it), youmust serve on the plaintiff an answer to the attached Z complaint El amended complaint

n counterclaim fl cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answeror motion must be served on the plaintiff's attorney, Robert H. Rotstein, whose address is MITCHELLSILBERBERG & KNUPP LLP, 11377 West Olympic Boulevard, Los Angeles, California 90064. If you fail todo so, judgment by default will be entered against you for the relief demanded in the complaint. You also mustfile your answer or m otion with the court.

(Seal of the Court)

[Use 60 days ifthe defendant is the United States or a United States agency, or is an officer or employee of the United States. Allowed60 days by Rule 12(a)(3)].

CV-01A (10/11 SUMMONS American LegalNet, Inc.www.FormsWorkFlow corn.



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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA{ CIVIL COVER SHEET .,you are representin g y ourself 0)EFENDANTSNBC STUDIOS, LLC; UNIVERSAL NETWORKISH NETWORK CORPORATION; DISH NETWORK L.L.C.3 TELEVISION, LLC; OPEN 4 BUSINESS PRODUCTIONSLLC and NBCUNIVERSAL MEDIA, LLC Attorney s (If Known)) Attorne y s (Firm Name, Address and Telephone Number. I fyou are representin gyourself provide same.)ROBERT H. ROTSTEIN (SBN 72452) [email protected]

MITCHELL, SILBERBERG & KNUPP LLP11377 West Olympic Blvd.Los Angeles, CA 90064-1683(310) 312-2000

(Place an X in one box onl y .)El 3 Federal Question (U.S.Government Not a Party0 4 Diversity (Indicate Citizenshipof Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES - For Diversit y Cases Onl y(Place an X in one box for plaintiff and one for defendant.)PTF DEF

Citizen of This State10 1ncorporated or Principal Placeof Business in this StateCitizen of Another StAe

0202ncorporated and Principal Placeof Business in Another State

Citizen or Subject of a Forei gn Country 0 33orei gn NationPTF D0 4 0

050

0 6 E

Government Defendant

y .)D 2 Removed from 0 3 Remanded from 0 4 Reinstated or El 5 Transferred from another district (specif y): fl 6 Multi-7 Appeal to Dis

Proceedin gtate Courtppellate Courteopened Districtud ge fromLiti g ationag istrate Juinal es E] No (Check 'Yes onl y if demanded in complaint.)l MONEY DEMANDED IN COMPLAINT: S. CAUSE OF ACTION (Cite the U. S. Civil Statute under which y ou are filin g and write a brief statement of cause. Do not cite jurisdictional statutes unless diversit y .)101, et seq. Copyright Infringement; Inducement of Copyright Infringement; Contributory Copyright Infringement; VicariousNATURE OF SUIT Place an X in one box only. )OTHER STATUTES' CONTRACT TORTS'PERSONAL INJURY.

El 310 Airplane0 315 Airplane Product

Liability0 320 Assault, Libel &SlanderD 330 Fed, Employers'Liabilityn 340 Marine

TORTS'.RSONAL,, PROPERTY. PRISONERPETIMNS ' LABOR0 710 Fair Labor StandAc t 110 Insurance0 120 Marine 510 Motions to Vacate

430 Banks and Banking 130 Miller Act 370 Other Fraud Sentence HabeasCorpus 1111 720 Labor/M g mt .450 Commerce/ICC 140 Ne gotiable Instrument II 371 Truth in Lendin g RelationsEl 730 Labor/Mgmt.Reporting &Disclosure Act

D 740 Railway Labor A

Rates/etc. D 150 Recovery ofOverpayment &Enforcement ofJudgment

380 Other Personal 530 GeneralProperty DamageD 385 Property Damage

,roduct Liability, BANKRUPTCY -0 22 Appeal 28 USC158Cl 423 Withdrawal 28USC 17_:' CIVILRIGHTS,.', 535 Death PenaltyEl 540 Mandamus/OtherEl 550 Civil Rights470 Racketeer Influencedand CorruptOr g anizationsSecurities/Commodities/Exchan ge 151 Medicare Act 790 Other Labor0 152 Recovery of DefaultedStudent Loan (Excl.Veterans) 345 Marine Product 555 Prison Condition Liti gationEl 791 Empl. Ret Inc.Security ActPROPERTY RIGHEl 820 Cop y ri g hts0 830 Patentfl 840 Trademark

SOCIAL SECURITY

Liability '''' FORFEITURE/PENALTY350 Motor Vehicle 153 Recovery of 355 Motor Vehicle 610 AgricultureOverpayment ofVeteran's Benefits Product Liability0 360 Other PersonalInjury

D 362 Personal Injury-Med Malpractice

0 620 Other Food &Dru g0 625 Dru g Related

Seizure ofProperty 21 USC8810 630 Li quor Laws0 640 R11.& Truck

875 Customer Challen g e 1 2 441 Votin gUSC 3410y Actions

160 Stockholders' Suits o4 43 Hmploymentus inwA c e 0 ...modationsI-1_1444 Welfaret`rL j 445 American with

D isabilit ies -Employment0 446 American with

Disabilities-Other0 440 Other Civil

Ri ghts

...

190 Other Contract891 Agricultural Act 195 Contract Product 61 HIA(I395f1)

Ac tLiability 365 Personal Injury- 862 Black Lun g (923 196 Franchise Product Liabilit y 863 DIWC/D1WW

893 Environmental Matters - REA L PROPPR 1 Y 368 Asbestos Person al 405(g) )Injury ProductLiabilityIMMIGRk 'HON'894 Energy Allocation Act 210 Land Condemnation 650 Airline Re gs 864 SSID Title XVI895 Freedom of Info. Act 0 220 Foreclosure III 660 Occupational 865 RSI (405(8))etermi-nation Under E qualAccess to Justice 230 Rent Lease & Ejectment Safety /Health FEDERAL TAX SUI0 870 Taxes (U.S. Plainor Defendant)0 871 IRS-Third PartyUSC 7609 240 Torts to Land 462 Naturalization 690 Other0 245 Tort Product LiabilityEl 290 All Other Real Propert yri

Application950 Constitutionality of State 1111 463 Habeas Corpus-Statutes Alien Detainee0 465 Other Immi gration

2 4e ctil s ,..OFFICE USE ONLY: Case Number: . .AFTER COMPLETING THE FRONT SIDE OF FORM CV-7I, COMPLETE THE INFORMATION REQUESTED BELOW.

CIVIL COVER SHEET Pa ge 1AmericanLegaINKInc.womForrnstWkflow.com



39/39

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIACIVIL COVER SHEET

ES: Have any cases been previously filed inthis court that are related to the present case? El No P Yesnumber(s):

a previously filed case and the present case:. Arise from the same o r closely related transactions, happenings, or events; orEl B. Call for determination of the same or substantially related or similar questions of law and fact; or

0 C. For other reasons muld entail substantial duplication of labor if heard by different judges; orD. Involve the same patent, trademark or copyright, and one of the factors identified above in a. bore also is present.

List the County in this D istrict; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides.ovemment, its agencies or emp loyees is a named plaintiff. If this box is checked, go to item (b). California County outside of this District; State, if other than California; or Foreign Country

List the County in this District; California County outside of this D istrict; State if other than California; or Foreign Country, in which EACH named defendant resides.overnment, its agencies or employees is a named defendant. If this box is check ed, go to item (c). California County outside of this District; State, if other than California; or Foreign Country

List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose.Note: In land condemnation cases, use the location of the tract of land involved.

District:* California County outside of this District; State, if other than California; or Foreign Countrythe location of the trueland involved

jo.421lAstgr "

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadingsor other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1974, is required pursuant to Local Rule 3 -1 is not filedbut is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)

Security Cases:Nature of Suit Codebbreviationubstantive Statement of Cause of A ction8611All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended.

Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under theprogram. (42 U.S.C. 1935FF(b))

862Lll claims for ''Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969(30 U.S.C. 923)863IWCll claims filed by inatred workers for disability insurance benefits under Title 2 of the Social Security Act, asamended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g))863IWWll claims filed for widows or widowers insurance benefits based on disability under Title 2 ofthe Social SecurityAct, as amended. (42 U.S.C. 405(g))864SIDll claims for supplemental security income payments based upon disability filed under Title 16 of the Social Secur

RT H. ROTSDate May 24, 2012


nbc studios v. dish networks complaint

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