Fox News Network, LLC v. TVEyes Inc., Docket No. 1:13-cv-05315 (S.D.N.Y. Jul30, 2013), Court Docket
Printed By: TOR EKELAND on Monday, August 5, 2013 - 11:01 AM
•JS.44C/SDNY
REV. 7/2012
Ninncni*.. CIVIL COVER SHEET
The JS-44 civil cover sheet and the information contained herein neither replace norjupplement the| fj ing and service ofpleadings or other papers as required by law, except as provided by loca^ule:Judicial Conference ofthe United States inSeptember1974, is required fo|initiating the civildocket sheet.
'rfy'appro'for the 315^20t3PLAINTIFFS
Fox News Network, LLC
DEFENDANTS
TVEyes Inc.JUL
ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER
Kirkland & Ellis LLP
601 Lexington Avenue, New York, New York 10022(212)466-4800
ATTORNEYS (IF KNOWN)
CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENfT(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Copyright Infringement, 17 U.S.C. § 101 et seq.
OFCAUSE)
Has this ora similar casebeen previously filed in SDNY at any time? No [x] Yes • Judge Previously Assigred
If yes, was this case Vol. • Invol. • Dismissed. No fj Yes • If yes, give date, & Case No.
IS THISAN INTERNATIONAL ARBITRATION CASE? No
(PLACE AN[x]IN ONEBOXONLY)
Yes D
NATURE OF SUIT
) 110]120] 130]140
1150
[ 1153
[ 1160
[ 1190
1195
PERSONAL INJURY
( ]310 AIRPLANE[ ]315 AIRPLANE PRODUCT
LIABILITY
[ ] 320 ASSAULT, LIBEL&SLANDER
[ ] 330 FEDERALEMPLOYERS'
LIABILITY
[ ] 340 MARINE[ ]345 MARINE PRODUCT
LIABILITY
[ ] 350 MOTOR VEHICLE[ ] 355 MOTOR VEHICLE
PRODUCT LIABILITY
[ J 360 OTHER PERSONALINJURY
INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT LOANS
(EXCL VETERANS)RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY
196 FRANCHISE
ACTIONS UNDER STATUTES
PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY
[]362 PERSONALINJURY - []610MED MALPRACTICE [ ] 620
[ ] 365 PERSONAL INJURYPRODUCT LIABILITY [ ] 625
[ ] 368 ASBESTOS PERSONALINJURY PRODUCT
LIABILITY
PERSONAL PROPERTY
[ ]630[ ]640[ ]650[ ]660
[ ]690
AGRICULTURE
OTHER FOOD &
DRUG
DRUG RELATED
SEIZURE OF
PROPERTY
21 USC 881
LIQUOR LAWSRR & TRUCK
AIRLINE REGS
OCCUPATIONAL
SAFETY/HEALTH
OTHER
FEAL
USC 158
ITHDRAWAL
USC 157
1422 A=>l2)1
1423 W21!
PROPERTY
04 820 COPYRIGHTS[ ]830 PATENT[ ] 840 TRADEMARK
SOCIAL S EOURITY
]370]371]380
]385
OTHER FRAUD
TRUTH IN LENDING
OTHER PERSONAL
PROPERTY DAMAGE
PROPERTY DAMAGE
PRODUCT LIABILITY LABOR [ ]861 HIA[ ]862 B./SCK[ ] 863 DIVY[ ]864 SSI[ ]865 RSI
(1395ff)LUNG (923)
C/DIWW (405(g))ID TITLE XVI
(405(g))PRISONER PETITIONS
[ ]510 MOTIONS TOVACATE SENTENCE
20 USC 2255 [ ] 740[ ] 530 HABEAS CORPUS [ ] 790[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS &OTHER [ ] 791
1710
[ ]720
[ ]730
FAIR LABOR
STANDARDS ACT
LABOR/MGMT
RELATIONS
LABOR/MGMT
REPORTING &
DISCLOSURE ACT
RAILWAY LABOR ACT
OTHER LABOR
LITIGATION
EMPL RET INC
SECURITY ACT
FEDERAL
[ ]870
TAX SUITS
(U.S. Plaintiff orT<VXES
Defendant)•THIRD PARTY
USC 7609
[ ] 871 IFtS25
REAL PROPERTY
ACTIONS UNDER STATUTES
CIVIL RIGHTS
[ ]441 VOTING[ ]442 EMPLOYMENT[ ]443 HOUSING/
ACCOMMODATIONS
[ ]444 WELFARE[ ]445 AMERICANS WITH
DISABILITIES -
EMPLOYMENT
[ ]446 AMERICANS WITHDISABILITIES -OTHER
[ ] 440 OTHER CIVIL RIGHTS(Non-Prisoner)
IMMIGRATION
220
230
240
245
LAND
CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL OTHER
REAL PROPERTY
PRISONER CIVIL RIGHTS
[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION
[ ]462
[ ]463
[ )465
NATURALIZATION
APPLICATION
HABEAS CORPUS-
ALIEN DETAINEE
OTHER IMMIGRATION
ACTIONS
OTHER STATUTES
[ ]400
]410]430]450]460]470
]480]490]810]850
[ ]875
[ J890
[ I
]893
]894
]895
]900
[ J 950
STATE
REAPPORTIONMENT
ANTITRUST
BANKS & BANKING
COMMERCE
DEPORTATION
RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT
(RICO)CONSUMER CREDIT
CABLE/SATELLITE TV
SELECTIVE SERVICE
SECURITIES/
COMMODITIES/
EXCHANGE
CUSTOMER
CHALLENGE
12 USC 3410
OTHER STATUTORY
ACTIONS
AGRICULTURAL ACTS
ECONOMIC
STABILIZATION ACT
ENVIRONMENTAL
MATTERS
ENERGY
ALLOCATION ACT
FREEDOM OF
INFORMATION ACT
APPEAL OF FEE
DETERMINATION
UNDER EQUAL
ACCESS TO JUSTICE
CONSTITUTIONALITY
OF STATE STATUTES
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DOYOU CLAIM THIS CASE IS RELATED TOA ClV LCASENOW PENDING IN S.D.N.Y.?IF SO, STATE:
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M 1 OriginalProceeding
ORIGIN
• 2 Removed from • 3 Remanded • 4 Reinstated or • 5 Transferred fromState Court from Reopened (Specify District)
I-! a. all parties represented Appellate'—' Court
I | b. At least oneparty is pro se.
(PLACE AN x INONEBOXONLY) BASIS OF JURISDICTION
• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT [X] 3 FEDERAL QUESTION D4 DIVERSITY(U.S. NOT A PARTY)
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiff and one box for Defendant)
PTF DEF
CITIZEN OF THIS STATE [ ] 1 [ ] 1
CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2
CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
INCORPORATED or PRINCIPAL PLACE
OF BUSINESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
Fox News Network, LLC1211 Avenue of the Americas
New York, NY 10036
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
TVEyes Inc.2150 Post Road
Fairfield, CT 06824
PTF DEF
[ ]3 [ ]3
[ ]4 [ ]4
DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, ATTHIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE
RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Checkone: THIS ACTION SHOULD BE ASSIGNED TO: Q WHITE PLAINS(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT
• 6 MultidistrictLitigation
I I 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment
IF DIVERSITY, INDICATECITIZENSHIP BELOW.
(28 USC 1332, 1441)
INCORPORATED and PRINCIPAL PLACEOF BUSINESS* IN ANOTHER STATE
FOREIGN NATION
PTF DEF
[]5 []5
[]6 []6
DILIGENCE, TO ASCERTAIN THE
|>3 MANHATTAN
DATE 7/30/2013 SIGNATURE OEATTORNEY OF RECORDE OF_ATTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICT
[ ] NON YES(DATEAttorney Bar CodeRECEIPT*
AipiYIITTED Mo. May Yr. 1985 )DC2676
Magistrate Judge is to be designated by the Clerk of the Court. j^Q JIJDPF FF1FCMagistrate Judge is so Designated.
Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED
UNITEDSTATES DISTRICT COURT (NEW YORK SOUTHERN)
ORIGINAL
^fcHELLERSTBM
Dale M. Cendali
Joshua L. Simmons
KIRKLAND & ELLIS LLP
601 Lexington AvenueNew York, New York 10022Telephone: (212) 446-4800Facsimile: (212) [email protected]@kirkland.com
Attorneysfor PlaintiffFox News Network, LLC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
I O vV
Case No.FOX NEWS NETWORK, LLC,
Plaintiff,
- against -
TVEYES, INC.,
Defendant.
ECF Case
en
o
Zn-A<
C-\
CO
COMPLAINT
Plaintiff Fox News Network, LLC ("Fox News"), by and through its
& Ellis LLP, for its Complaint, hereby alleges against Defendant TVEyes,
follows:
NATURE OF THE ACTION
1. This action seeks to recover damages that Fox News has suffeWd
the irreparable harm that continues to threaten Fox News as a result of TVEy^
infringement of Fox News's valuable intellectual property rights in and to its
programming and content. Specifically, TVEyes copies Fox News's proprietWy programming
attorneys, Kirkland
Ink ("TVEyes") as
and to prevent
's willful
television
SE- ">• c~>
o 5
twenty-four hours a day as it is being telecast and makes the programming available for a
subscription fee to Internet users on its website, <http://www.tveyes.com>.
2. As the following image illustrates, TVEyes makes verbatim n
News's programming and the closed captioning associated therewith. After
willfully appropriating all of Fox News's content, TVEyes, without Fox Nevis
distributes, publicly performs and publicly displays that content on its own w
epreductions of Fox
lawfully and
s consent,
ebsite:
un
Media Monitoring Suite /^5T tveyesLog In > Transcript
Transcript
Fox News - U.S. Cable
The O'Reilly Factor
+ National Viewership:National PublicityValue $145,613.58
2,211,292
FNC 7/03/2013 8:01:13 PM: ...to enterthe no spin zone, the factor beginsright now. bill o'reilly, thanks for watchingus tonight, the fbi and the irs. that is thesubject of this evening's talkingpoints memo, a conservative groupcalled the american center for law and
justice says that the federal bureauof investigation has not even contacted,has not even contacted any of the41 groups involved in the class action suitagainst the irs. as you may know,the federal tax agency admits it targetedsome conservative organizations andindividuals, delaying tax exempt statusand auditing some people because of theirpolitical beliefs, that's a huge scandal,if true, and it is the fbi's job to see if
. ^tllf -
O'ReilK\CTOB.
\
3 >) S
Webpage from TVEyes's Media Monitoring Suite Website^
3. Upon information and belief, in a deliberate attempt to profit fit>m Fox News's
valuable intellectual property, TVEyes sells subscriptions to its Media Monitb|-
to users who can then view Fox News's programming on the TVEyes website
Service"). The Infringing Service directly competes with Fox News' telecastih
licensing services.
Log In
ing Suite service
(the "Infringing
g and clip
4. TVEyes is well aware that it mustobtain a license, consent or
Fox News in order to reproduce, distribute, publicly perform, publicly displ
use Fox News's programming and content in thismanner. In fact, TVEyes
seeking a license for its use of Fox News content. Fox News declined and
occasions that TVEyes cease its willful and infringing reproduction of Fox
TVEyes has refused to comply and even to respond to FoxNews's most
information and belief, continues infringing Fox News's copyrights.
5. In sum, TVEyes has engaged, and continues to engage, in a
of knowingly, intentionally and willfully infringing FoxNews's copyrights,
builda business by stealing FoxNews's programming and content, and
distributing, publicly performing and publicly displaying purloined copies
Moreover, despite FoxNews's repeated requests that TVEyes cease its infrir
TVEyes hascontinued to misappropriate and profit from Fox News's copyri
6. Accordingly, due to TVEyes's blatant and willful infringi
cease and desist, Fox News has no choice but to file this lawsuit seeking inj
damages that it has suffered as a result of TVEyes's direct and contributory
infringement under the Copyright Actof 1976, 17 U.S.C. § 101 etseq., and
misappropriation.
PARTIES
7. Plaintiff Fox News is a limited liability company having its pfi
authorization from
and/or otherwiseav
contacted Fox News
demanded on multiple
s's content,
recent letter. Upon
Ne|v
padern and practice
is attempting toIt
reproducing,
off that content,
ing activities,
Jited content,
and refusal to
relief and
jement
injunctive
copyright
stkte law
business in the State ofNew York and is qualified to do business and is doin
State of New York and in this judicial district. Fox News is, and at all times
owner of Fox News Channel and Fox Business Network and engaged in the
otherthings, of creating, producing, distributing and marketing television programs.
-3-
hcipal place of
g business in the
rjiaterial herein was,
business, among
8. Defendant TVEyes is a corporation organized and existing under the laws of the
State of Delaware and having offices in Fairfield, Connecticut and, upon information and belief,
New York, New York. TVEyes owns and operates the website available at
<http:www.tveyes.com>.
JURISDICTION AND VENUE
9. This action arises under the Copyright Act of 1976, 17 U.S.C
New York state law. This Court has jurisdiction pursuant to 28 U.S.C. §§ 133
10. Venue is proper in this Districtunder28 U.S.C. §§ 1391 and
ALLEGATIONS COMMON TO ALL CLAIMS FOR RELt
I. Fox News and Its Award-Winning Programming
11. Fox News is one of the world's preeminent news organization sP It is engaged in
the business of creating and producing original television programming and content, gathering
news and information, and telecasting, publicly performing, publiclydisplaying, licensing and
otherwise distributing its copyrighted programming and content. FoxNewso|vnsand operates
two national cable channels: FOX News Channel ("FNC") and FOX Business Network ("FBN"
(collectively, the "Fox News Networks").
12. FNC has been in operation since October 7, 1996. It is a24-1 dur all-
encompassing news service dedicated to delivering breaking news as well as political and
business news. A top five cable network, FNC hasbeen the most watched nev/s channel in the
country for more than ten years and, according to Public Policy Polling, is the most trusted
television news source in the country. FNC is available in more than 90 mill i4)n homes and
dominates the cablenews landscape, routinely notching the top ten programs jn the genre.
13. FBN has been in operation since October 2007. It is a financ ia[l news channel
delivering across all platforms real-time information that impacts both Main
-4-
§ 101 et seq., and
1, 1338 and 1367.
400.
IEF
Street and Wall
Street. Headquartered in New York City—the financial capital of the world
business network to telecast in full-screen 720p high definition throughout tht
FBN is distributed to more than 60 million subscribers.
FBN is the only
programming day.
14. Among the copyrighted content created and distributed by Fox News is its award
winning programming, such as The O 'ReillyFactor, Hannity, On the Record
Susteren, The Five and Special Report with Bret Baier.
15. The O'Reilly Factor, a news and talk show hosted byon air pe^onal
O'Reilly, has been the highest rated cable news show for more than ten consecutive
first aired on FNC in 1996. Since that time, it has won two BMI Cable Awariii
nominated for the TCA Award for Outstanding Achievement in News and Information
16. Hannity is a television show hosted by Sean Hannity, one of the
and influential conservative voices in the country. Since 2009, the program
news, commentary, interviews and branded segments, such as the Great AmeHpan
is made up of three nightly in-studio guests from across the political spectruni
Mfith Greta Van
lity Bill
years. It
and has been
most prominent
offered a mix ofhas
various issues.
Panel, which
Who discuss
17. On the Record with Greta VanSusteren is a prime-time news
program, which launched in February 2002. Ms. Susteren has conducted
interviews, including, butnot limited to, interviews of former Presidents Geoj-:
Bill Clinton and George W. Bush. On the Record is the highest rated cable
10:00-11:00 p.m. timeslot.
18. The Five is a talk show featuring varying personalities and g
current political issues and pop culture. It features a rotating panel of hosts,
arid interview
uesjs
in
-5-
numerous high-profile
ge H. W. Bush,
n^vs program in the
that discuss
Eluding Andrea
Tantaros, Bob Beckel, Dana Perino, Eric Boiling, Greg Gutfield, Juan Willai
Guilfoyle.
19. SpecialReport with BretBaier is a news and political comme^ry
airs live on weekdays from 6:00- 7:00 p.m. ET. During its time slot, it is thi
program on cable. Anchored by Washington news veteran Bret Baier, Special,
in-depth analysis of news and political issues.
II. Distribution of Fox News's Programming
20. Fox News' programming and content are distributed via the
which telecast Fox News's content 24 hours a day, every day. From these te
derives revenue both from its cable company licensees and from its advertisiiji
companies pay Fox News a royalty based on subscriber fees for access to
content. Advertisers pay Fox News a fee to telecast advertisements during
Fox News's programming. Both sources of revenue are determined, in part,
viewership of the Fox News Networks.
21. In addition to these telecasts, Fox News offers select video cl
programming and content via its own websites, including <http://www.foxne)w
<http://www.foxbusiness.com>; through licensed websites, such as Hulu
<http://www.hulu.com>and YouTube <http://www.youtube.com>; and via
archival footage library, which is available at <http://www.itnsource.com>.
News's content is available on the Internet; much of its content remains excl
News Networks.
22. Fox News receives revenues from each authorized website
clips on Fox News's own websites, Fox News is paid by advertisers to embed
mis and Kimberly
program that
jiumber one news
Report provides
Fox News Networks,
epasts, FoxNews
g partners. Cable
News's valuableFox
cortimercial breaks in
b^sed on the
IPS of its
s.com> and
the ITN Source
Ntot all of Fox
usive to the Fox
With regard to video
advertising such
that viewers will see the advertising before reaching Fox News's content. The inclusion of Fox
News's programming on Hulu and YouTube provides similar revenues.
23. ITN Source, on behalf of Fox News, licenses past Fox News cbhtent through its
online library of video clips. ITN Source's library includes over fifty thousand^ FoxNews clips
selected from the full range of Fox News programming and content. Furthermore, ITN Source
offers to seek licenses from Fox News for clips not already offered in the onlinje catalog. Fox
News derives revenue from all licenses sold by ITN Source.
III. Fox News's Valuable Intellectual Property Rights in its Programing
24. FoxNews has invested vast resources, including time, effort, talent, creativity and
money, to produce its programming. Its programming has a large following of fans throughout
the world making the FoxNews Networks two of the most popularchannels in| television today.
Fox produces up-to-the-minute news reporting on the timely matters that most interest
consumers. In addition to high-quality news reporting, Fox News produces creative and
expressive programming—including myriad videos, sounds and images—that Ss original to Fox
News and constitutes copyrightable subject matter under the laws of the United States.
25. Each Fox News episode is separately written, produced and directed and
constitutes a separate copyrighted work asa television motion picture. Fox Nejws also holds the
copyrights for each episode's closed captioning.
26. While registering each episode produced on Fox News's two 24-hour cable
networks would be unduly burdensome, Fox News has registered with the United States
Copyright Office a representative sample of its most recent programming as television motion
pictures (the "Works"). Included among the Works are the following episodes:
• Hannity- Episode of July 3, 2013, 9:00 p.m.In this episode, Hannity airs his exclusive interview with GeorgeZimmerman and attorney Mark O'Mara. They discuss what happened on
-7-
the night of the shooting of Trayvon Martin, straightenrumors that Hannity offered to pay for Zimmerman'sallow Zimmerman to deliver a message to the Martinpublic.
The O 'Reilly Factor - Episode of July 3. 2013. 8:00 p,
put the record over
legal defense, andfafriily and the
m.
In this episode, O'Reilly comments on the FBI's failinvestigate the IRS, discusses the removal of anti-terro^from the far left, covers the latest on the murder trial o
Zimmerman, and reports on the coup in Egypt.
urs to aggressivelyads under pressureGeorge
Fox Report with Shepard Smith - Episode of July 3, 201 3. 7:00 p.m.
In this episode, Shepard Smith reports on the murder trjiZimmerman, the military coup in Egypt, and the 150thBattle of Gettysburg.
i$l of Georgeanniversary of the
The O'Reilly Factor -Episode of July 2, 2013. 8:00 p.
cffGeorgebijiblic's opinion ofDpen's shattered
riz^ona wildfire.
In this episode, O'Reilly comments on the murder trialZimmerman, analyzes with Charles Krauthammer thethe Supreme Court, discusses with John Stossel Paulacareer, and reports on the death of firefighters in an A
Special Report with BretBaier- Episode of July 2. 20 lft, 6:00 p.mIn this episode. Shannon Bream fills in for Bret Baierunrest in Egypt, the NSA leaks and Edward Snowden.George Zimmerman, the implementation of the Affordablegovernment sequestration, waste in the social securityspill, and the 150th anniversary of the Battle of Gettys
The Five - Episode of July 2, 2013. 5:00 p.m.This episode features Andrea Tantaros, Bob Beckel, EricPerino, and Greg Gutfeld discussing Islamic extremismthe publicity push for the Affordable Care Act, the NSASnowden, a British survey about pretending to be moreto impress others, and a 19-year-old jailed over a threatFacebook. Greta Van Susteren guests to discuss the mZimmerman.
Hannity - Episode of June 28, 2013, 9:00 p.m.In this episode, Hannity covers recent developments inGeorge Zimmerman, airs highlights of a previously recwith George Zimmerman, and comments on allegationsthe shooting of Trayvon Martin.
£rid reports onthe murder trial of
Care Act.
system, the BP oilbijirg.
Boiling, Danaunrest in Egypt,leaks and Edward
Clever or cultured(nade on
rider trial of George
the murder trial ofdrded interview
that racism caused
Special Report with Bret Baier - Episode of June 28, 2013, 6:00 p.m.In this episode, Bret Baier reports on congressional investmisconduct, the NSA leaks and Edward Snowden, President
-8-
igations into IRSObama's trip
to Africa, the murder trial of George Zimmerman, theAaron Hernandez, gun legislation, and the U.S. miliAfghanistan.
aijrest of NFL-starpresence intary
The Five - Episode of June 28. 2013. 5:00 p.m.
This episode features Kimberly Guilfoyle, Bob BeckelPerino, and Greg Gutfeld discussing the murder trialZimmerman, the arrest of NFL-star Aaron Hernandez,Edward Snowden, Alec Baldwin's salacious tweets,
Facebook questions from fans, workplace drinking,court's ruling that tip jars at Starbucks must be shared
, Eric Boiling, Danaof George
the NSA leaks andresponses to
andiaNew York
with supervisors.
On the Record with Greta Van Susteren - Episode of June 26, 2013,10:00 p.m.
This episode covers the ongoing congressional investimurder charges against NFL-star Aaron Hernandez, theGeorge Zimmerman, a home invasion caught on cameraand the landmark Supreme Court decisions on DOMA
ations into the IRS,
murder trial of
in New Jersey.and Proposition 8.
Fox Reportwith ShepardSmith - Episode of November 2, 2012, 7:00 p.min part of New
and the final jobsIn this episode, Shepard Smith reports on gas rationingJersey, the cancellation of the New York City marathonreport before Americans head to the polls.
The Five - Episode ofNovember 2. 2012. 5:00 p.m.
This episode features Andrea Tantaros, Bob Beckel,Perino, and Greg Gutfeld discussing the devastationand the current state of the presidential race.
Ejrjc Boiling, Danafrpjri Hurricane Sandy
On the Record with Greta Van Susteren - Episode of October 31,2012,10:00 p.m.
Thisepisode focuses on the current stateof the presidentialnew poll out six days before the election shows that theeven.
Hannity - Episode of October 31. 2012. 9:00 p.m.
In this episode, Hannity discusses looting, gas shortagand food shortages causing chaos throughout the Northcomments on President Obama's response to Hurricarjehow the President is abandoning bipartisanship to miRomney's record and stance on the issues in the lastelection.
ial race, where acontest is dead
eS, power outages,East. HannitySandy and shows
sHpresent Governorwdek before the
The O'ReillyFactor- Episode October 31. 2012. 8:00 p.mIn this episode, O'Reilly comments on the dangerouselements of the Democratic Party threatening violencelooses reelection and on Al Gore and the far left blam
and extreme
if BarackObama
ing Hurricane Sandy
on global warming as an election ploy. Guests on this episode includeDenis Miller, Karl Rover, and Dick Morris.
Special Report with BretBaier- Episode of October 29^ 2012, 6:00 p.mIn this episode, Bret Baier reports on the historic Hurricanedown on the Atlantic Coast and on the havocthe monsp^rwreak on the presidential campaigns.
Hannity - Episode ofOctober 22, 2012, 11:05 p.m.This special edition episode of Hannity was broadcastroom following a Presidential debate. Hannity presentstwo very different candidates that took the stage and afrenetic - and at times desperate. Hannity discusses thetMarco, Governor Sarah Palin, and John Sununu.
Sandy bearingstorm may
iye from the spinhis views of the
debate that was
debate with Rubio
Special Report Investigates: Death & Deceit in Benghazi - Episode ofOctober 19. 2012. 10:00 p.m.
In this special broadcast, Bret Baier reports on the terroristBenghazi that resulted in the death of four Americanson the anniversary of 9/11. Baier's reporting team triesimportant questions: Who did this, and how? Shouldseen it coming? Did President Obama try to hide thescandal that exposes a failed Obama foreign policy, orsaying it is?
attack in
the U.S. consulate
to answer the
government havefji? Is this a huge
is Mitt Romneyjust
at!
our
: tiu
The O'Reilly Factor -Episode October 16. 2012. 8:00
In thisepisode, broadcast just before the presidential debateUniversity, O'Reilly comments on the current state of thelatest polling and with analysis from Charles Krauthammer,and Scott Rasmussen. Additionally, supported with investiColonel David Hunt, O'Reilly addresses the growing Lireports that the State Department heard the terror attack
PJ1L
at Hofstra
election with the
Larry Sabato,igation by
ibya scandal andive.
Attached hereto as Exhibit A, and incorporated herein by reference, are true and correct copies
of the Certificates of Registration issued by the Copyright Office for the Works. The attached
certificates reflect the date upon which Fox News applied for a Certificate of
date on which the certificate was issued and the registration number assigned
27. The Works—which feature unique commentary and reporting
employees, various graphics and images, the selection of distinctive and stylized
and the closed captioning associated with each episode—are creativeexpression
- 10-
Registration, the
by Fox News
camera angles,
of news events
that were the product of editorial discretion and substantial journalistic skills,
creative energies.
28. The Works also are of great value to Fox News and are watc
millions of viewers. In fact, on multiple occasions, the viewerships forepisode
The O 'Reilly Factor have been between four and six million.
29. Fox News is, and at all times material herein was, the sole owner
ofall right, title and interest in and to the copyrights in the Works. The copy^i
are presently valid and subsisting and were valid and subsisting at all times affectin
complained of herein.
IV. TVEyes
30. TVEyes is engaged in the parasitic business of offering and prbvidin
public for a fee copies of television programming and content created by othejrs
website, TVEyes delivers "real-time TV and radio content on an internationa
fee." Upon information and belief, while TVEyes originally followed an
based business model, today, TVEyes charges a subscription fee of $500 per
the use of the Infringing Service. The Infringing Service is not publicly avai
31. Asa "media monitoring company," TVEyes records broadcasl
television and radio content twenty-four hours each day from various media
in the United States, "all 210 DMAs [Designated Market Areas] and more
including all major network affiliates and network cable television stations.'
broadcasts and cable television and radio content made by TVEyes and offered
users, are saved, stored or maintained on servers or other computer equipment
by, maintained on behalf of, or otherwise under the direction or control of, TVEyes
resources, and
:hed
than
weekly by
s of Hannity and
and proprietor
ghts in the Works
g the matters
iding to the
According to its
platform for a flat
advertising revenue-
month per user for
liable.
and cable
ljiarkets including,
1,600 stations
The copies of
by TVEyes to its
owned or leased
32. TVEyes makes all of the infringingcontent it records available
listening by its users without any commentary or analysis. When a userselects
Infringing Service's videos, TVEyes distributes, publicly performs and publ
content by streaming the video content anddisplaying the closed captioning
servers to the user's computer.
33. Videos are available contemporaneously with their original
through the Infringing Service's archive of media clips and transcripts. As
Infringing Service's UserGuide, TVEyes provides its userswith "a real time
what is being broadcast across each channel in the TVEYES footprint." Onc^
station, TVEyes distributes, publicly performs and publicly displaysa "real
video for the selected station."
34. The Infringing Service contains a search function that permits
search for keywords, phrases and topics found in, upon information and
captioning associated with the broadcast and cable television and radio content
TVEyes. Unlike Internet search engines, such as Google Web Search and B
not index and enable searches of content published and available on the
TVEyes's search function only searches within TVEyes's own archive ofunk
broadcast, cable and radio content that TVEyes illicitly copied. Thus, TVEyes
easier for Internet users to find content residing on other websites. Rather, it
easier for TVEyes to publicly perform, publicly display and distribute TVEyps
reproductions of others' content.
35. As the screenshot below illustrates, users of the Infringing
locate programming and content by date range, specific stations and markets
lie
for viewing or
one of the
ly displays the
ijrpm TVEyes's
broadcasts, aswell as
described in the
visual snapshot of
a user selects a
time transcript and
TVEyes's users to
; the closed
copied by
g, TVEyes does
. Instead,
ijthorized copies of
does not make it
simply makes it
's unauthorized
belief;
ini
Internet
Service also are able to
12
Media Monitoring Suite
Dat«/T<me Search
Date Tim* M*rfc«t Station
US Catiie0
ABCtl-"*r. **• +
Abil»f>e, 1* Ahtc
Albany- CA BLOOM
lAIMnv *v BRAVO
.Afbuquerqu«, NM t-artcD'i «*tt**jrtt
.Meimdm i \ < HV Srwirf' Nplw^irk
Aiperu, Ml trrtL
'Arruiilfc. TX rf«r w^"i
Infringing Service's Date/Time Search
Thus, the Infringing Service permits users to view programming and content jiays or months
after it was originally broadcast.
36. Users of the Infringing Service alsocandownload an unlimited
of the content that TVEyes illicitly reproduces. Moreover, the Infringing SerVice
editor that allows users to create derivative works based upon TVEyes's infrijig
V. TVEyes's Infringement of and Commercial Exploitation ofFox News's Copyrighted Programming
37. TVEyes has taken upon itself, without any license or authorization from Fox
News, to misappropriate the entirety of the Works that Fox News has developed
and to reproduce, to distribute, to publicly perform and/or to publicly display
the Works. TVEyes copies Fox News's programming twenty-four hours eac^i
programming is being telecast by Fox News or its licensees. As the side-by
below illustrate, TVEyes then makes the programming, including, but not limited to, the Works,
available to Internet users around the world through the Infringing Service
13
number of copies
ice includes a clip
ing content.
side
at great expense
verbatim copies of
day as that
screenshots
Authorized Clip of the July 2,2013 Episode ofThe O'Reilly Factor on Hulu.com
Hannitu Weeknighi
Zimmerman trial: Is the prosecution still in the game?
/^ tV€LJGS
2,2013 Episode ofon TVEyes
Infringing Copy of the JulyThe O'Reilly Factor
/^S)^ tveyes
!!) *•) •)
Authorized Clip of the June 28, 2013 Episode of Infringing Copy of the JuneHannity on FoxNews.com Hannity on
28, 2013 Episode ofTVEyes
14
/"5^ tveyes
Authorized Clip of the June 26, 2013 Episodeof On the Record on FoxNews.com
Infringing Copy of the JuneOn the Record or
26,2013 Episode ofTVEyes
38. In so doing, TVEyes infringes Fox News's valuable and
expression and violates Fox News's right to the exclusive use of its creative
contraventions of its copyrights in the Works. TVEyes also free rides on the
Fox News has invested in producing its premium, up-to-the-minute news
39. By virtue of its infringing activities, TVEyes has developed a
information and belief, produces millions of dollars in revenue each year.
40. Moreover, TVEyes directly competes with Fox News's own
its works. First, users of the Infringing Service are able to substitute their vi
News Networks by watching TVEyes's contemporaneous reproductions of
Second, the Infringing Service serves as a substitute for users watching Fox
on Fox News's own websites and the websites of its licensees. Third, when
download and use video clips from past telecasts on specific content, the
substitutes for ITN Source, Fox News's licensed clip library.
15
propr; etary creative
prpducts in
expense and effort
reporting.
business that, upon
attempts to monetize
vieyvership of the Fox
¥i)X News's telecasts.
News programming
lisers wish to search,
Infringing Service
VI. TVEyes Refuses to Cease Infringing Fox News's Copyrights andAppropriating Fox News's Works
41. TVEyes knows that it must obtain a license or other authorizatjipn
in order to use the Works in the manner described above. TVEyes's Director
Robert Bruder, contacted Fox News seeking to form a partnership. Mr. Bruder
News that TVEyes had been using Fox News's content without authorization
now sought a license from Fox News in exchange for which it would compensate
response, Fox News demanded that TVEyes cease its use of Fox News's
however, refused to take down the infringing content.
42. Fox News again contacted TVEyes and demanded that its
immediately. TVEyes again refused to take down the infringing content.
43. Due to TVEyes's repeated refusals, Fox News, through its outride
TVEyes on April 16, 2013 the letter attached as Exhibit B. In the letter, Fox
forth in detail, citing recent and controlling case law, why the Infringing Service
News's content constituted copyright infringement. The letter also demanded
any further use or distribution of Fox News's content. Fox News's counsel
in a subsequent e-mail exchange with TVEyes Founder and CEO, David Ives
44. TVEyes never responded substantively to the letter.
45. Despite Fox News's repeated efforts to resolve this dispute w
intervention, TVEyes has not removed Fox News's content from the Infringi
upon information and belief, continues to use Fox News's content in the manner
above.
46. Moreover, upon information and belief, TVEyes recently has
Fox News's content by, among other things, creating a mobile phone application
- 16-
from Fox News
of Client Relations,
notified Fox
and that TVEyes
Fox News. In
content. TVEyes,
content be taken down
counsel, sent
News's counsel set
s use of Fox
that TVEyes cease
reiterated its demand
ii:ho ut court
g Service and,
described
Expanded its use of
for the
nn
Infringing Service and increasing its international presence, bothof which are designed to build
TVEyes's user base. By doing so, TVEyes increasingly diverts users from Fox News's telecasts
and licensed clip services.
VII. The Harm to Fox News
47. As discussed above, Fox News produces cable television progt-
receives revenue from subscriber fees, advertising in telecasts, advertising embedded in content
made available on the Internet, and clip licensing.
48. TVEyes's willful infringement robs Fox News of these revemies. Itsverbatim
reproduction of the Works, without consent, (1) allows TVEyes to profit commercially without
paying the traditional price, and (2) devalues andcauses substantial harm to the value of the
Works. Thus, Fox News has been damaged by TVEyes's conduct in an amojint to be determined
according to proof.
49. Moreover, upon information and belief, TVEyes is aware that
theexpense of content producers like Fox News. Nevertheless, TVEyes does not collect fees for
Fox News. Instead, it monetizes Fox News's content—which one TVEyes employee has
described as "clearly very significant"—and keeps the profits for itself, thus undermining Fox
News's investment in its content in order to create its award-winning programming. In so doing,
TVEyes also undermines the incentive for Fox News to continue to produce such high-quality
programming.
50. TVEyes's acts of reproduction, public performance and publ
Worksare just a sample of the massive ongoing pattern and practice of infrin
by TVEyes. All day, each and every day, TVEyes continues to create
Fox News's programming and content as it is aired by Fox News.
17-
rams for which it
its profits come at
iC display of the
gement undertaken
unauthorized copies of
51. Upon information and belief, unless enjoined by this Court, TyEyes
continue to infringe upon Fox News's copyrights and otherwise to profit fronj
works.
intends to
Fox News's
52. Accordingly, Fox News has suffered irreparable damages. Fok News has no
adequate remedy at law to redress all of the injuries that TVEyes has caused ind intends to cause
by its conduct. FoxNews will continue to suffer irreparable damage until T\(Eyes's actions
alleged above are enjoined by this Court.
CLAIMS FOR RELIEF
COUNT I
Copyright Infringement (17 U.S.C. § 101 et seq.)
53. Fox News repeats and realleges each and every allegation abo^e as if fully set
forth herein.
54. The Works are original, creative works and copyrightable subject matter under the
laws of the United States.
55. Fox News is the owner of valid copyrights in the Works, and
Copyrights has issued valid Certificates of Registration as indicated in Exhibit
56. Fox News has complied in all respects with 17 U.S.C. §§ 101,
secured the exclusive rights and privileges in and to the copyrights in its televi
and content.
57. By its actions, alleged above, TVEyes has infringed and will
Fox News's copyrights in and relating to Fox News's programming and content i
reproducing, distributing, publicly performing and publiclydisplaying the Wi>rks
authorization or other permission from Fox News.
- 18-
the Register of
A.
et seq., and has
iSion programming
continue to infringe
by, inter alia,
without any
19
58. TVEyes's infringement of Fox News's copyrights has been deliberate, willful and
in utter disregard of Fox News's rights.
59. Upon information and belief, as a direct and proximate result
conduct, TVEyes has obtained benefits, including, but not limited to, investments
company to which TVEyes is not entitled.
60. As a direct and proximate result ofTVEyes's wrongful conduct
been substantially and irreparably harmed in an amount not readily capable of
Unless restrained by this Court, TVEyes will cause further irreparable injury
61. Fox News is entitled to injunctive relief enjoining TVEyes, its
employees, and all persons acting in concert or participation with it, from end,
infringement of Fox News's copyrighted programming and content.
62. Fox News is further entitled to recover from TVEyes the dama^
attorneys' fees and costs, it has sustained and will sustain, and any gains, profits
obtained by TVEyes as a result of its acts of infringement as alleged above,
amount of such damages, gains, profits and advantages cannot be fully ascertained
but will be established according to proof at trial. Fox News also is entitled
damages for TVEyes's willful infringement of its copyrights.
COUNT II
State Law Misappropriation (Hot News)
63. Fox News repeats and realleges each and every allegation abo^e as if fully set
forth herein.
64. Fox News incurs substantial expense producing and distributing tocustomers its
premium daily and weekly up-to-the-minute news programming and commentary.
of its wrongful
in the
, Fox News has
determination,
to Fox News.
agents and
aging in any further
ges, including
and advantages
present, the
by Fox News,
recover statutory
At
to
65. The value of much of Fox News's product is extremely time
offers Fox News content to consumers before Fox News has had a chance to
content to its consumers through authorized services.
66. TVEyes's use of the content that Fox News creates constitutes
News's significant investment in preparing, producing, and distributing
on the specific news matters that interest customers.
67. TVEyes's subscription services directly compete with Fox
partners' services by distributing Fox News's valuable content to the same
News and its licensed partners target. TVEyes infringing services convey the
TVEyes is a legitimate distributor of Fox News content, intentionally misleaqin
believe that there is a connection or association between Fox News and TVEVe
sensitive. TVEyes
'ully distribute its
none.
68. If TVEyes is allowed to continue its willful free-riding on Fox
programming, it will substantially reduce Fox News's incentive and ability to
content, jeopardizing both the quality and the quantity of premium news repoftin
consumers.
69. TVEyes's actions constitute "hot news" misappropriation und^rNew York
common law. TVEyes has acted willfully, in bad faith, and without regard
70. Fox News has suffered and will continue to suffer immediate,
irreparable harm to its business and reputation. Fox News has no remedy at
adequately address all of the past andcontinuing harm it has and will suffer a^s a result of
TVEyes's past and continuing conduct.
free-riding on Fox
premium news reporting
News and its licensed
consumers that Fox
appearance that
g consumers to
s where there is
News's
produce new
ing available to
for Fox News's rights,
severe, and
that willlaw
20
COUNT HI
State Law Misappropriation (Direct Competition)
71. Fox News repeats and realleges each and every allegation
forth herein.
72. As detailed above, Fox News expends considerable time and
producing and distributing its premium programming and content. Fox News
reputation have significant monetary value to Fox News.
73. TVEyes uses Fox News's work in competition with it, includiA
to, by providing an archival clip service in competition with Fox News's li
Source. TVEyes's service also allows customers to watch Fox programming
competition with Fox News's cable partners, Fox News's own websites, and
TVEyes's contemporaneous distribution of Fox News's content directly
News cable telecasts.
74. TVEyes has willfully misappropriated Fox News's property ri
programming and content. By intentionally misappropriating Fox News
off to consumers through its unauthorized sales and services, TVEyes inten
public to believe that there is a connection or association between Fox News
there is none.
75. As a result, TVEyes gains a special advantage over Fox News
bears none of the expense of producing news programming and content on
interest viewers. Upon information and belief, TVEyes has made, and
substantial profits as a direct result of its appropriation of Fox News content.
76. As a result of TVEyes's misappropriation, Fox News has
commercial and monetary damages as well as injury to its reputation.
-21 -
above as if fully set
expense in
S content and its
g, but not limited
icensing partner, ITN
online in
its website partners,
competes with Fox
j?hts in its
content and palming it
tidnally misleads the
and TVEyes where
because TVEyes
news matters thatthe
continues to make,
suffered significant
77. Fox News has no remedy at law that will adequately address a
continuing harm it hasand will suffer as a result of TVEyes's pastand conti
direct and proximate result of TVEyes'sconduct, FoxNews has suffered and
sufferdamages in an amount presently unknown and to be ascertained at time
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Fox News respectfully requests judgment ag
TVEyes as follows:
A. Find that TVEyes has infringed Fox News's copyrights in the
Find a substantial likelihood that TVEyes will continue to infrfn
intellectual property unless enjoined from doing so;
Issue a preliminary and permanent injunction enjoining TVEy^
servants, employees, attorneys, successors and assigns, and al
corporations acting in concert with it, from directly or indirectly
News's copyrights, including, but not limited to, reproducing,
publicly performing or publicly displaying any of Fox News's
content in connection with any service offered by TVEyes,
further acts of misappropriation, and from participating or
activity;
D. Order TVEyes to render a full and complete accounting to Fok News for
TVEyes's profits, gains, advantages or the value of the business opportunities
received from the foregoing acts of infringement;
E. Enterjudgment for Fox News against TVEyes for all damage
News and for any profits or gain by TVEyes attributable to in
News's intellectual property in amounts to be determined at
-22-
1of the past and
g conduct. As anuin
B.
C.
will continue to
pf trial.
;ainst Defendant
Works;
ge Fox News's
s, and its agents,
persons, firms and
infringing Fox
distributing,
programming or
engaging in
assisting in any such
from
jes suffered by Fox
fringement of Fox
trial;
H.
J.
Enter judgment for Fox News against TVEyes for statutory damages based upon
TVEyes's willful acts of infringement pursuant to the Copyright Act, 17 U.S.C. §
101 et seq.;
Enter judgment for Fox News against TVEyes for punitive darjiages in amounts to
be determined at trial;
Award FoxNews costs and disbursement of this action, including reasonable
attorneys' fees and costs pursuant to 17 U.S.C. § 505;
Award Fox News pre-judgment and post-judgment interest, to
available, on the foregoing; and
the fullest extent
Grant such other, further and different relief as the Court deem
DEMAND FOR JURY TRIAL
Plaintiff Fox News demands a trial by jury on all issues so triable in this action
KIRKLAND & ELLIS LLP
s just and proper.
Dated: New York, New YorkJuly 30, 2013
//iL£L Gz^JwdLDale M. Cendali
Joshua L. Simmons
601 Lexington AvenueNew York, New York 1002J2Telephone: (212) 446-4800Facsimile: (212) [email protected]@kirkland.com
Attorneys for PlaintiffFox News Network, LLC
23
Fox News Network, LLC v. TVEyes Inc., Docket No. 1:13-cv-05315 (S.D.N.Y. Jul 30, 2013), Court Docket
© Bloomberg Finance L.P. All rights reserved. Terms of Servicehttp://www.bloomberglaw.com/ms/document/X1Q6MP1E1VO2?documentName=9000003.pdf&fmt=pdf //
PAGE 1
General Information
Case Name Fox News Network, LLC v. TVEyes Inc.
Docket Number 1:13-cv-05315
Court United States District Court for the Southern District of NewYork
Nature of Suit Property Rights: Copyright
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