Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 1 of 53 HIGHLY CONFIDENTIAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Case No. 13-CV-5315 (AKH) FOX NEWS NETWORK, LLC, JOINT SUBMISSION ADDRESSING ISSUES RAISED IN THE COURT’S AUGUST 25, 2015 OPINION AND ORDER Plaintiff, - against TVEYES, INC., Defendant. We represent Defendant TVEyes, Inc. (“TVEyes”) in the above-referenced action. Pursuant to the Court’s Opinion and Order dated August 25, 2015 (“August 25, 2015 Opinion,” “Opinion,” or “Op.”) [Dkt. 173], we write jointly with counsel for Plaintiff Fox News Network, LLC (“Fox News”) to provide the Court with the parties’ joint submission regarding the parties’ positions regarding (1) TVEyes’ emailing and sharing features, including development and implementation of protective measures; and (2) an appropriate decree and the issue of damages. TVEyes’ position begins on Page 1; Fox News’ position begins on Page 33. * * * TVEyes’ Submission TVEyes’ section of this joint submission addresses the following topics: 1. The remaining issues of liability that must be resolved before consideration of damages or injunctive relief, if any, is appropriate; 2. TVEyes’ proposed protective measures for assuring the Court that Fox News clips e-mailed through TVEyes’ e-mailing feature will be used consistently with fair use under 17 U.S.C. § 107; and 3. Areas of disagreement with Fox News’ counter-proposal on protective measures relating to TVEyes’ e-mailing feature. 1 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 2 of 53 HIGHLY CONFIDENTIAL I. REMAINING ISSUES OF LIABILITY MUST BE RESOLVED BEFORE CONSIDERATION OF DAMAGES, IF ANY, IS APPROPRIATE. In its Opinion, the Court requested that the parties “suggest an appropriate decree, and advise the Court whether any issue of damages remain.” (Op. at 19). TVEyes respectfully advises that before consideration of any form of relief— including the possible implementation of protective measures regarding TVEyes’ emailing feature—can take place, Fox News first must carry its burden of proving that TVEyes’ date/time search, downloading, and e-mailing features (hereinafter, the “Additional Features”) render TVEyes liable for direct copyright infringement. At base, if TVEyes is not liable for direct infringement as to these features, then Fox News is not entitled to relief. Because Fox News has not, and cannot, establish such direct liability, the Court need not even address any relief, including issues of damages or a decree; rather, the Court may dismiss Fox News’ copyright claim and enter Final Judgment in TVEyes’ favor. A. TVEyes Is Not Liable For Direct Infringement Relating To The Additional Features. In its Opinion, the Court ruled that the Additional Features are not fair uses in their current forms; this does not mean, however, that these features are per se direct infringements for which TVEyes is liable. Rather, as the plaintiff in this action, Fox News still bears the burden of proving all of the elements of direct copyright infringement, including that it “must demonstrate … infringement of the copyright by the defendant” with regard to the Additional Features. Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 108-09 (2d Cir. 2001) (emphasis added). “[A] person or entity cannot be found directly liable for copyright infringement without proof of some volitional act by the person that constitutes or causes the infringement.” In re AutoHop Litig., 2013 WL 5477495, at *5 (S.D.N.Y. 2 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 3 of 53 HIGHLY CONFIDENTIAL Oct. 1, 2013); see also Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 742 (S.D.N.Y. 2012) (“Direct liability requires ‘volitional conduct’ that ‘causes’ the infringement.”), aff’d sub nom. Wolk v. Photobucket.com, Inc., 569 F. App’x 51 (2d Cir. 2014). As the Second Circuit has explained: [T]o establish direct liability under … the [Copyright] Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner. Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 130 (2d Cir. 2008) (emphasis in original) (citation omitted). In Cartoon Network, defendant Cablevision offered a “Remote Storage Digital Video Recorder” system (“RS-DVR”), which enabled cable subscribers to select television programs to be copied (using Cablevision software) onto hard drives maintained by Cablevision at a remote location. Id. at 124. Customers could then select and play back those programs on their television sets at their leisure, even though those programs were copied by and stored on Cablevision’s servers. Id. While Cablevision had a license to provide the underlying television content to its subscribers, it did not have a license to allow users to copy those programs via its RS-DVR, nor to allow subscribers to play back and view those copies at a later date. The plaintiffs, owners of the copyrighted programs, brought a claim of direct—but not secondary—copyright infringement against Cablevision, claiming that its provision of the RS-DVR feature that allowed users to select particular programs to copy, store them on Cablevisions servers, and view them at a later date constituted copyright infringement. The Second Circuit ruled that the services offered on Cablevision’s RS-DVR system did not render Cablevision directly liable for copyright infringement because 3 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 4 of 53 HIGHLY CONFIDENTIAL it was Cablevision’s customers, not Cablevision itself, who engaged in the volitional act of requesting, making, and performing the copies at issue. As the Court explained, “volitional conduct is an important element of direct liability,” and “Cablevision’s conduct in designing, housing, and maintaining a system that exists only to produce a copy” was not sufficiently proximate to any instance of unauthorized copying instigated by a Cablevision customer to hold Cablevision liable as a direct infringer. Id. at 131. Rather, “by selling access to a system that automatically produces copies on command, Cablevision more closely resembles a store proprietor who charges customers to use a photocopier on his premises, and it seems incorrect to say, without more, that such a proprietor ‘makes’ any copies when his machines are actually operated by his customers.” Id. at 132. As another federal court explained (in a case where a different Fox entity was the plaintiff): “A system that operates automatically at a user’s command to make a recording does not in itself render the system’s provider a volitional actor for purposes of direct copyright infringement.” Fox Broad. Co. v. Dish Network LLC, 2015 WL 1137593, at *20 (C.D. Cal. Jan. 20, 2015) (emphasis added).1 Courts in this District repeatedly apply the binding precedent of Cartoon Network, holding that where certain features of an automated system allow third parties to copy and access copyrighted works, such systems are not liable for direct infringement. See, e.g., Poindexter v. Cash Money Records, 2014 WL 818955, at *7-8 (S.D.N.Y. Mar. 3, 2014) (plaintiff did not present evidence of defendant’s volitional conduct); Wolk, 840 F. Supp. 2d at 742 (automated copying on defendant’s system, directed by user, defeats direct liability); In re AutoHop Litig., 2013 WL 5477495, at *6-7 (no direct liability on DVR system because defendant “has no control over which programs will be shown on those networks or in what order, just as it has no control over which of its subscribers choose to copy those programs”); see also Fox Broad. Co., 2015 WL 1137593, at *12, 20 (no volitional conduct and therefore no direct liability for automated features offered by defendant that allow users to demand unauthorized playback of copyrighted programming). In addition, every other Circuit to consider the issue has agreed with Cartoon Network that volitional conduct by the defendant is required to find direct liability. See Fox Broad Co. v. Dish Network LLC, 747 F.3d 1060, 1066-68 (9th Cir. 2014); (footnote continued) 1 4 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 5 of 53 HIGHLY CONFIDENTIAL The RS-DVR system at issue in Cartoon Network is legally indistinguishable from TVEyes’ Additional Features. As far as these features are concerned, TVEyes houses and maintains an automated system that allows its users to conduct a date/time search, e-mail a link to a clip, or download a clip. TVEyes itself does not engage in any volitional conduct with respect to the Additional Features; rather, these are automated systems that respond to users’ commands. Thus, as a matter of law, TVEyes cannot be liable for direct infringement as to the Additional Features. That the Court ruled the Additional Features to not be fair uses has no bearing on this inquiry; in Cartoon Network, the defendant waived any fair use defense, but nonetheless was found to not be directly liable. See 536 F.3d at 124.2 Such an outcome is by no means unfair to Fox News. As Cartoon Network explained, the Court’s confidence in setting this standard for direct liability was “buttressed” by “the … doctrine of contributory liability in the copyright context. … [T]o the extent that we may construe the boundaries of direct liability more narrowly, the doctrine of contributory liability stands ready to provide adequate protection to copyrighted works.” Id. at 132. In other words, the Second Circuit has ruled that in cases like this one—where the allegedly infringing conduct flows from a product feature that is automated and user-directed—infringement is assessed (if Parker v. Google, Inc., 242 F. App’x 833, 836-37 (3d Cir. 2007); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 549-50 (4th Cir. 2004). It is irrelevant whether TVEyes’ initial capture of Fox News content is “volitional” or not, because even if that initial capture was directly caused by TVEyes, the Court has already found that capture to be a fair use. Thus, TVEyes’ posture in this case as to the original broadcasts is no different than Cablevision’s: Cablevision’s initial volitional copying of the content was authorized pursuant to license, while TVEyes’ initial volitional copying is authorized by fair use. ln both cases, the reception of the original broadcast is not infringing, and the only question is whether the provision of the supplemental automated features is sufficiently volitional to sustain a claim of direct copyright liability. The answer in both cases is no. 2 5 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 6 of 53 HIGHLY CONFIDENTIAL at all) under a contributory liability framework. And like the plaintiff in Cartoon Network, Fox News has only asserted a claim of direct infringement against TVEyes, and has expressly disclaimed any claim of secondary liability against TVEyes. See Fox Opp. Br. [Dkt. 148] at 67 (“Fox News has brought a direct infringement, not secondary liability, claim against TVEyes.”). Because Fox News intentionally chose to invoke a claim of direct infringement only, and because there are no facts that can establish direct liability as to TVEyes on the Additional Features, Fox News is not entitled to a judgment of infringement at all, let alone an award of damages, a permanent injunction, or a decree. Fox News offers two substantive arguments as to why this Court should not dismiss the remaining claims under Cartoon Network: (1) it is excused from proving the volitional conduct element of direct copyright infringement by the Supreme Court’s ruling in American Broadcasting Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014) (“Aereo”); and (2) applying the Second Circuit precedent in Cartoon Network, TVEyes’ Additional Features satisfy the volitional element of direct infringement. Both arguments fail. First, it is universally understood that the Supreme Court’s decision in Aereo left the volitional conduct element of direct copyright infringement intact. As one district court recently observed: “The volitional conduct doctrine is a significant and long-standing rule, adopted by all Court of Appeals to have considered it, and it would be folly to presume that Aereo categorically jettisoned it by implication.” Fox Broad. Co., 2015 WL 1137593, at *11; see also Garner v. CafePress, Inc., 2014 WL 6890934, at * 3 (S.D. Cal. Dec. 4, 2014) (“The Supreme Court expressly decided not to address the volitional conduct issue”). Moreover, Aereo’s holding was explicitly limited to technologies substantially similar to the one before it and those sufficiently analogous to a “community antenna television” providers. Aereo, 134 S. Ct. at 2504, 2507 (premising its holding on “Aereo’s overwhelming likeness to the 6 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 7 of 53 HIGHLY CONFIDENTIAL cable companies targeted by the 1976 amendments [to the Copyright Act]”). Indeed, Aereo was careful to limit its holding so that it would not be applied to “[q]uestions involving cloud computing, remote storage DVRs and other novel issues not before this Court” or in a manner that would “discourage … or control the emergence or use of different kinds of technology.” Id. at 2510 (brackets omitted). Aereo does not apply to TVEyes’ media-monitoring service which, as a database and search engine largely protected by fair use, is nothing like a CAT provider or a cable company. Second, Fox News argues that, as a factual matter, the Additional Features in this case are different than those at issue in Cartoon Network and therefore demand a different outcome. Fox News is wrong. The central principle articulated in Cartoon Network—that liability for direct copyright infringement requires volitional conduct that causes the copies at issue to be made—absolves TVEyes from direct liability because it is undisputed that the Additional Features are entirely automated and require no volitional conduct on the part of TVEyes beyond the “designing, housing and maintaining” a searchable database of television content. Cartoon Network, 536 F.3d at 131. That the Additional Features at issue in this case are different in some ways than the features at issue in Cartoon Network is of no moment. What counts is that there is no volition on TVEyes’ part with respect to the use of these features because they are user-initiated and entirely automated.3 Fox News also argues that TVEyes is more like a “video on demand” service than a searchable database. But video on demand services present customers with preselected, carefully curated programming options with a start time and end time selected by the service and then presented to the user for viewing. TVEyes’ service offers nothing of the sort. TVEyes captures everything that is aired on more than 1000 channels to create a comprehensive database of content that can be queried by users for research. TVEyes provides the database to be searched and the features that can be used to search it. This is not sufficiently “volitional” under Cartoon Network to support direct liability. 3 7 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 8 of 53 HIGHLY CONFIDENTIAL Fox News also advances several procedural arguments as to why this Court should not dismiss the remaining claims under Cartoon Network. Specifically, Fox News claims that its burden of proving TVEyes’ volitional conduct as to the Additional Features has been “untimely” asserted. Fox News is wrong for multiple reasons. First, the issue of TVEyes’ alleged volitional conduct as to the Additional Features is not an affirmative defense that TVEyes was required to assert in its Answer. Rather, as the Second Circuit has explained, “volitional conduct is an important element of direct liability” that Fox News has the burden to establish to set forth a prima facie claim of direct copyright infringement. Cartoon Network, 536 F.3d at 131 (emphasis added). Every other Court to address the issue has agreed that proof of volitional conduct is an element of a plaintiff’s affirmative case of liability, and the plaintiff bears the burden of proof. See, e.g., Gardner, 2014 WL 6890934, at *3 (“volitional conduct by the defendant” is one of “three elements to a prima facie case of direct infringement”); Leonard v. Stemtech Health Sciences, Inc., 2013 WL 5288266, at *5 (D. Del. Sept. 19, 2013) (“to prove direct infringement, a plaintiff must establish … volitional conduct on the part of the defendant that causes the infringement”); Parker, 242 F. App’x at 837 (“to state a direct copyright infringement claim, a plaintiff must allege volitional conduct on the part of the defendant”). Because Fox News bears the burden of proving this element, TVEyes had no reason or obligation to raise this element in its Answer as an affirmative defense—it simply isn’t one.4 The Court is no doubt aware that a plaintiff’s failure to satisfy an element of its prima facie case is not an affirmative defense that must be pleaded, because plaintiff, not defendant, bears the burden of proof. See, e.g., Hadar v. Concordia Yacht Builders, Inc., 886 F. Supp. 1082, 1089 (S.D.N.Y. 1995). Even if this Court harbored any doubts, Fox News concedes that TVEyes asserted an affirmative defense of failure to state a claim upon which relief can be granted. [See Dkt. 12 at (footnote continued) 4 8 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 9 of 53 HIGHLY CONFIDENTIAL Second, Fox News claims that it moved for summary judgment on infringement, and that the Court then “expressly held” that TVEyes is liable for copyright infringement absent a showing of fair use. Fox News is wrong. The Court never “expressly held” that TVEyes is liable for direct infringement; rather, it expressly held that: (1) “TVEyes database and provision of television clips and snippets of transcript are transformative and thus constitute fair use” (Sept. 9 decision at 32); and (2) “TVEyes’ archiving function qualifies as fair use, … its downloading and ‘Date-Time search’ functions do not qualify as fair use,” and its “emailing feature can qualify as fair use” (Op. at 18).5 Those are the Court’s only holdings on summary judgment relating to copyright infringement. 9]. Because Fox News cannot establish volitional conduct as to the Additional Features by TVEyes, it cannot establish a required element of direct infringement and therefore does not state a claim. Fox News places extraordinary weight on its misconstrued reading of one passing sentence in the Court’s Sept. 9 decision, where the Court noted that “Fox News owns valid copyrights in the nineteen television programs that form the subject of this lawsuit,” and “TVEyes admits also that it copies, verbatim, each of Fox News’ registered works. These concessions constitute copyright infringement unless TVEyes shows that its use is fair.” (Sept. 9 decision at 11, citing UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000)). This is not a holding made after the Court considered and ruled on whether Fox News established TVEyes’ volitional conduct as to the Additional Features. This passage refers only to TVEyes’ admission that it captures the entirety of Fox News’ broadcasts in order to create a comprehensive database of television content. At most, the Court held that TVEyes’ initial capture of the content for inclusion in its database is sufficiently volitional, but that capture has been found by the Court to constitute fair use. The Court never addressed whether any subsequent action by TVEyes with relation to the Additional Features is volitional or constitutes infringement. Indeed, given that both of the Court’s opinions only addressed TVEyes’ fair use defense with regard to copyright, any stretch of that one sentence to somehow constitute a binding finding to cover separate alleged acts of copying must, at best, constitute dicta. In addition, UMG Recordings was decided eight years before Cartoon Network and never addressed volitional conduct. 5 9 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 10 of 53 HIGHLY CONFIDENTIAL Third, Fox News claims that TVEyes should have included Fox News’ deficiency in its written September 23 proposal regarding TVEyes’ proposed protective features for its e-mail feature. However, as this Court is aware, on that date TVEyes was required only to “propose protective measures to Fox News.” [Dkt. 176]. Fox News’ failure to allege volition has nothing to do with those proposed measures. Further, at TVEyes’ very first meet-and-confer with Fox News about the parties’ positions on whether any issue of damages remained, TVEyes informed Fox News of its position that any assessment of damages is premature until liability is established, that TVEyes did not believe that direct liability had been established, and that Fox News had not pled secondary liability. Fox News thus was provided with ample warning of TVEyes’ position that damages cannot be assessed because Fox News has not yet established liability. Fourth, Fox News incorrectly asserts that TVEyes would need to request reconsideration in order for the Court to assess whether Fox News has established volitional conduct as to the Additional Features. As discussed above, the Court never held TVEyes liable for direct copyright infringement; thus, a motion for reconsideration facially would have been improper. And while Fox News argues that it moved for summary judgment on infringement, that section of its brief makes no mention of the Additional Features; rather, its motion was premised on the assertion that “TVEyes admitted to verbatim copying” of Fox News’ initial broadcasts to create its comprehensive database. See [Dkt. 41 at 25-26]. In any event, the Court never granted Fox News’ motion, and given that the only holdings issued by the Court to date address fair use, there was no order by the Court on direct infringement that justified reconsideration. Fifth, TVEyes never had any reason to advance this argument until after the Court issued its August 25, 2015 Order and asked whether it is appropriate to address damages. As far as TVEyes is aware, in every case where a Court found an 10 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 11 of 53 HIGHLY CONFIDENTIAL initial capture of copyrighted material to be a fair use (as is the case here with TVEyes’ initial capture of Fox News’ broadcasts), supplemental features such as emailing and downloading for the same fair use purposes have also been found fair. See, e.g., American Institute of Physics v. Winstead PC, 2013 WL 6242843 (N.D. Tex. Dec. 3, 2013) (e-mailing and permanent saving of articles in furtherance of original fair use purpose was fair because these fair uses were “largely indistinguishable” and “functionally identical to the [initial] copies … subject to fair use”); White v. West Publ’g Corp., 2014 WL 3385480, at *2 (S.D.N.Y. July 11, 2014) (ability to email and download briefs in furtherance of same fair use purpose of original found likewise to be fair). The Court’s September 9, 2014 decision—the first that TVEyes is aware of where a court “split” its fair use finding in such a manner—instructed that the parties only address certain, discrete issues relating to fair use, and as to certain limited features, in their supplemental submissions. TVEyes had no reason to raise volition when Fox News had not previously offered any independent assessment of direct liability as to the Additional Features. changed the landscape with its September 9 decision. Rather, the Court TVEyes should not be punished for following the Court’s instruction. Sixth, the Court should recognize that TVEyes’ own motion for summary judgment was limited to its fair use defense. Thus, TVEyes has not yet had an opportunity to provide the Court with briefing on direct liability as to the Additional Features. Given that volitional conduct is an element of Fox News’ claim, this Court should exercise its discretion to either (1) amend its Opinion to hold that direct liability for the Additional Features cannot be established as a matter of law under Cartoon Network; or (2) allow TVEyes to move for summary judgment on the issue of direct liability. It makes sense for the Court to address Cartoon Network now because it presents a dispositive issue that could relieve the Court of having to 11 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 12 of 53 HIGHLY CONFIDENTIAL address damages or injunctive relief and could result in a Final Judgment that would be appealable as of right.6 Because the Court is able to reach a conclusion on its own inspection of Cartoon Network, the Court may immediately rule that TVEyes is not liable for direct infringement as to the Additional Features, dismiss this remaining claim, and issue a Judgment in TVEyes’ favor. However, to the extent that the Court harbors any doubts, TVEyes respectfully requests the opportunity to submit short briefing on this issue, which is dispositive of the remaining direct copyright infringement claim as a matter of law, and which TVEyes has not had the opportunity to address.7 B. An Assessment Of Damages Is Premature. The Court requested that the parties “advise the Court whether any issue of damages remain.” (Op. at 19). For the reasons stated above, TVEyes believes an Fox News now appears to ask for an opportunity to assert a secondary liability theory, which it claims would “moot the issue” of direct liability. Fox News is wrong. First, Fox News has expressly disclaimed any theory of secondary liability; indeed, it relied on the absence of such a theory in its briefing on summary judgment. Second, even if Fox News were allowed to amend its complaint more than two years after the fact, an assertion of secondary liability would not “moot” TVEyes’ position; rather, Fox News would then have the burden of proving that TVEyes is secondary liability as to these Additional Features—a burden it will not be able to satisfy. 6 If the Second Circuit finds on appeal that the Additional Features are protected fair uses, then any inquiry into whether Fox News has established direct liability would be mooted and thus unnecessary. See Sarvis v. Polyvore, Inc., 2015 WL 5934759, at *8 (D. Mass. Aug. 24, 2015) (holding that plaintiff did not establish volitional copying by defendant, but also holding that “[t]he fair use defense provides an alternative basis to avoid a judgment on the pleadings”) (emphasis added). If the Court so chooses, it has the discretion to sua sponte certify its August 25, 2015 order for interlocutory review pursuant to 28 U.S.C. § 1292(b). See, e.g., BOKF, N.A. v. Caesars Entm’t Corp., 2015 WL 5076785, at *12 & n.88 (S.D.N.Y. Aug. 27, 2015) (sua sponte certifying order for interlocutory review and citing cases); Montefiore Med. Ctr. v. Teamsters Local 272, 2009 WL 3787209, at *6 (S.D.N.Y. Nov. 12, 2009) (similar). 7 12 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 13 of 53 HIGHLY CONFIDENTIAL assessment of damages at this time would be premature; addressing damages before liability would put the cart before the horse. In addition, TVEyes agrees with Fox News that, at a minimum, the Court should first complete its consideration the open liability issues, including the protective measures proposed by TVEyes, before addressing any issues of damages. Finally, Fox News has not provided TVEyes with any information regarding its substantive position on damages in this action. During the meet-and-confer process in advance of this submission, Fox News stated that its position was “that the Court resolve the remaining liability issues in this case before addressing damages,” but it would not disclose; (1) whether it intends to seek damages against TVEyes (presuming that liability is found); or (2) what theory of damages it intends to pursue. TVEyes thus is not in a position to advise the Court of its own substantive position on damages, other than to say that the question of damages should be addressed only if and when liability is proven. C. The Court Should Issue A Judgment Dismissing The Case, And Not A Permanent Injunction Against TVEyes. The Court also requested that the parties “suggest an appropriate decree.” (Op. at 19). Because Fox News has not satisfied its burden of proving that TVEyes is liable for direct infringement as to the Additional Features, TVEyes submits that consideration of a decree pertaining to potential limitations on those features at this time is premature, for the same reasons stated above. See supra Part I.A. To the extent the Court issues any order at this time, it should be a Final Judgment dismissing Fox News’ remaining copyright claim because TVEyes’ Additional Features do not constitute direct infringement by TVEyes of Fox News’ copyrights as a matter of law. Fox News’ request that the Court immediately issue a permanent injunction should be rejected. As an initial matter, the Court has before it only 19 discrete Works-in-Suit that are the subject of Fox News’ claim. Because the scope of the 13 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 14 of 53 HIGHLY CONFIDENTIAL Court’s jurisdiction extends only to those 19 Works-in-Suit, any appropriate relief (injunctive or otherwise), if granted, must necessarily be limited to those 19 Worksin-Suit only, as this Court does not have jurisdiction to find liability or issue relief over copyrighted works not before it. An order of injunctive relief must be “coterminous with the infringement” and “narrowly tailored to fit specific legal violations.” 5 Nimmer on Copyright § 14.06; see also id. (“the scope of the injunction … should generally be no broader than the infringement”). Accordingly, an injunction that restrains conduct that has not been adjudicated as infringing, i.e., beyond the 19 Works at issue, is impermissibly overbroad. See, e.g., Universal Furniture Int’l, Inc.v. Collezione Europa USA, Inc., 618 F.3d 417, 441 n.9 (4th Cir. 2010) (affirming injunction restraining sale of furniture with respect to pieces found to have infringed plaintiff’s copyrights, but not as to pieces for which there was no finding of infringement). Thus, to the extent that Fox News’ proposed injunction seeks relief beyond the 19 specific Works-in-Suit, such relief is improper. In any event, Fox News has not established the elements for injunctive relief. Under eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006): [A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 391. This standard applies to copyright cases. See Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (applying eBay to copyright claims). Fox News has the burden of establishing all four factors, and even if it does, principles of equity still provide the Court with discretion to not issue an injunction. See Pearson Educ., Inc. v. Ishayev, 9 F. Supp. 3d 328, 342 (S.D.N.Y. 2014) (denying permanent injunction 14 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 15 of 53 HIGHLY CONFIDENTIAL even though liability found, holding permanent injunction “not mandatory and does not automatically follow a determination that a copyright has been infringed”). Fox News has not satisfied these four elements. First, the public interest would be greatly disserved by a permanent injunction as proposed by Fox News. As the Court recognized, the Additional Features offer substantial fair use benefits to its users. There is no question that TVEyes clients use these features to make substantial non-infringing uses of Fox News clips for researching, analyzing, and critiquing what aired on television. (By contrast, Fox News does not allow anyone to use licensed Fox News content for the purpose of criticizing Fox News.) Thus, even if the Court finds that TVEyes’ offering of the Additional Features to be infringing, it is not necessarily the case that TVEyes’ client’s use of Fox News clips is infringing. And the fact that the public makes fair use of the snippets provided by TVEyes weighs heavily against the issuance of a permanent injunction. Any interest Fox News has in its copyright pales in comparison to these benefits, especially considering that 100% of Fox News content can already be accessed and shared (including to conduct unlimited e-mail sharing and social-media posting) via the TV News Archive (discussed further below). Moreover, the injunction proposed by Fox News is overbroad because it would enjoin conduct—namely, specific forms of e-mail communications—that this Court has recognized qualify as fair use. (Op. at 14 (“to prohibit e-mail sharing would prevent TVEyes users from realizing much of the benefit of its transformative service”)). Second, Fox News has not proven it will suffer irreparable harm absent an injunction. Under Salinger, irreparable harm cannot be presumed merely by a finding of infringement; rather, Fox News must make an independent factual showing. 607 F.3d at 80. Fox News’ submission asserts that the Court already found irreparable harm because it found that certain features have the “potential” 15 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 16 of 53 HIGHLY CONFIDENTIAL for abuse. These findings are not sufficient to carry Fox News’ burden of proving actual irreparable harm to it flowing from TVEyes’ use of the 19 Works. Rather, Fox News must must introduce affirmative evidence of actual harm that cannot be compensated with money. That the TV News Archive allows users to: (1) publicly post all Fox News clips; (2) share them by e-mail with unlimited recipients; and (3) review clips based on the date and time of airing—and that this activity does not harm Fox News— undermines any argument that TVEyes’ use of the 19 Works irreparably harms the value of Fox News’ copyrights. See, e.g., TVEyes Annex A (demonstrating how TV News Archive’s users can scroll through and find clips that aired at particular times on Fox News, akin to the Date-Time search) and TVEyes Annex B (demonstrating how TV News Archive’s users can e-mail unlimited clips to unlimited recipients and can and publicly post Fox News clips to social media, including Twitter, Facebook, Tumblr, and Pinterest, on an unlimited basis). This alone is enough to show that the Additional Features do not cause any irreparable harm to Fox News. Third, the balance of harm tips sharply in TVEyes’ favor. Fox News’ proposed injunction would put TVEyes at a great competitive disadvantage because TVEyes alone would be prevented from offering its clients the ability to send clips via email for fair use purposes. There is a serious risk that some of TVEyes clients would seek out other media monitoring services that are able to permit e-mailing clips for fair use. See, e.g., Second Anten Decl. ¶6 & Ex. YYY at TVEYES-005876-66; Anten Decl. Ex. SSS at TVEYES-008278; Second Anten Decl. ¶3 & Ex. VVV at FOXNEWS0001343. 16 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 17 of 53 HIGHLY CONFIDENTIAL Anten Decl. Ex. FFF at FOXNEWS0001424. , as a matter of equity the imposition of a permanent injunction is inappropriate here. See Petrella v. Metro Goldwyn Mayer, Inc., 134 S. Ct. 1962, 1978 (2014) (“the District Court, in determining appropriate injunctive relief … may take account of her delay in commencing suit”).8 Fourth, to the extent Fox News claims to have been harmed by the few instances in which TVEyes’ clients accessed the Works-in-Suit via the Additional Features, Fox News can easily be compensated for that behavior by a monetary award, as contemplated by the Copyright Act. Moroever, the fact that the TV News Archive has made all of the 19 Works available to the public—and allows clips to be e-mailed, search for by date/time, and posted to the largest social media sites—and for free, not only undercuts Fox News claim that it has suffered irreparable harm at the hands of TVEyes, but weighs against an award of damages at all. These are just a few of the many reasons why the injunction proposed by Fox News should be rejected. TVEyes recognizes this particular pleading is not the forum to brief every reason for why a permanent injunction is not appropriate in this case. For now, it is enough for this Court to recognize that Fox News has not even come close to satisfying the standard for permanent injunctive relief.9 That TVEyes voluntarily disabled its downloading and date/time search features for FNC and FBN is not a concession of a lack of hardship. TVEyes certainly cannot be faulted for tweaking its offerings voluntarily to comply with a federal court’s order pending appeal; to so hold would disincentivize any party from taking good faith steps to comply with a Court’s request, even if that order is not yet final. 8 It is also worth noting that even the substance of Fox News’ proposed permanent injunction is rife with flaws and assumptions. For example, Fox News’ proposed injunction cites its own complaint for the proposition that TVEyes “knowingly, intentionally, and willfully” infringed Fox News’ content. Willfulness means the (footnote continued) 9 17 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 18 of 53 HIGHLY CONFIDENTIAL II. TVEYES’ PROPOSED PROTECTIVE MEASURES.10 In the Opinion, the Court stated that TVEyes emailing feature “can qualify as a fair use, but only if TVEyes develops and implements adequate protective measures.” (Op. at 18.) Pursuant to these instructions, TVEyes served proposed a set of such protective measures on Fox News on September 23, 2015. Fox News responded in the form of a counter-proposal, served on TVEyes on October 6, 2015. From October 19 to October 22, 2015 the parties met and conferred about their respective proposals. Having considered Fox News’ positions, TVEyes proposes that the protective measures set forth below will “reasonabl[y] and adequate[ly]” assure the Court that subscribers’ sharing of TVEyes clips by e-mail will be done consistent with § 107. (Op. at 15.) infringer had actual or constructive “knowledge that its actions constitute an infringement.” Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1115 (2d Cir. 1986). Fox News has introduced no facts in support of willfulness; to the contrary, that TVEyes’ core service has been deemed a fair use demonstrates that if there is any liability to be found against TVEyes as to the Additional Features, TVEyes would at most be an innocent infringer. See Broad. Music, Inc. v. JJ Squared Corp., 2013 WL 6837186, at *9 (E.D.N.Y. Dec. 26, 2013) (disputed issues of fact on willfulness); Broad. Music, Inc. v. 84-88 Boradway, Inc., 942 F. Supp. 225, 232 (D.N.J. 1996) (issues of fact regarding whether copyright infringements were willful, knowing, or innocent). TVEyes respectfully disagrees with the Court’s ruling that TVEyes’ e-mail feature, as currently offered, is not a fair use. In addition, for the reasons set forth above (see supra Part I.A), TVEyes respectfully submits that the implementation of any protective measures as to TVEyes’ e-mail feature is unnecessary, given that Fox News has not yet established (and cannot establish) that TVEyes is a direct infringer with respect to that feature. Notwithstanding theses positions, TVEyes proposes the protective measures herein to comply with the Court’s order, while preserving this issue for appeal (as well as the Court’s rulings on the other features it ruled were not fair uses). TVEyes respectfully requests that the Court confirm that any restrictions ordered by the Court need not be implemented until this action is final. 10 18 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 19 of 53 HIGHLY CONFIDENTIAL A. Permitting TVEyes To Voluntarily Adopt Protective Measures Is Not An Advisory Opinion. As an initial matter, Fox News argues that allowing TVEyes to voluntarily adopt protective measures would constitute an “advisory opinion.” Fox News is incorrect. The record in this case is not yet closed. If TVEyes’ recommended protocols satisfy the Court, such protocols are not advisory or hypothetical; they are concrete mechanisms on which the Court may definitively rule as surely as if they were already in place at the time suit was filed. In fact, courts routinely consider the facts as they exist at the time a ruling is issued, and not at the time a suit was filed (which, in this case, was over two years ago). See, e.g., Authors Guild v. Google, Inc., --- F.3d ---, 2015 WL 6079426, at *2 (2d Cir. Oct. 16, 2015) (analyzing Google’s program for fair use “at this time and on the record before us”) (emphasis added); id. at *16 (addressing how Google feature “is presently designed”) (emphasis added). Once TVEyes implements its proposed features, the Court can and should revisit its ruling to find that TVEyes’ e-mailing feature is a fair use. That is the point of the Court’s request for such proposals. However, the Court may not do what Fox News suggests, namely, ignore its own findings that TVEyes’ e-mail feature often is a fair use and issue an overbroad injunction prohibiting all use of e-mail. None of Fox News’ case citations are to the contrary. In Shady Records, Inc. v. Source Enters., Inc., 371. F. Supp. 2d 394, 396 (S.D.N.Y. 2005), for example, the plaintiff had voluntarily moved to dismiss the action two weeks before trial, but also asked the court to make findings on fair use “for future courts.” Here, however, the case is not dismissed and the Court has not definitively ruled on the fair use of TVEyes’ e-mail system; effectively, the Court has asked for supplementation of the factual record. Likewise, both Gladwell Govt’l Servs., Inc. v. County of Marin, 2005 WL 2656964, at *3 (N.D. Cal. Oct. 17, 2005) and State of Texas v. West Pub’g Co., 19 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 20 of 53 HIGHLY CONFIDENTIAL 681 F. Supp. 1228 (W.D. Tex. 1988), were declaratory judgment actions where the courts ruled that there was no “actual controversy” under Article III, so the courts did not have jurisdiction to rule on the merits of the plaintiffs’ claims (including fair use); here, however, an actual controversy is conceded. That TVEyes has proposed concrete, and not hypothetical, protective measures confirms that a ruling of fair use predicated on such measures would not be advisory. See Transcience Corp. v. Big Time Toys, LLC, 50 F. Supp. 3d 441, 451 n.6 (S.D.N.Y. 2014) (a decision is not advisory where it concerns facts whose existence is imminent) (citation omitted). By contrast, any ruling by the Court on damages or injunctive relief would be impermissibly advisory because liability has not yet been established as to the Additional Features. See Williams v. Bier Int’l, LLC, 2015 WL 4461668, at *3 (S.D.N.Y. July 21, 2015) (“Because liability has not yet been established against Defendants, such a decision by the Court on damages would be merely advisory.”). B. Limitations On Playing TVEyes Links On Social Media. In the Opinion, the Court ruled that TVEyes has “implemented a series of measures that prevent [TVEyes clips] from being accessed through social media,” but that “the efficacy of those measures is disputed.” (Op. at 3 n.3.) The Court asked TVEyes to “to demonstrate that [these] measures will be reasonably effective.” Id. TVEyes proposes to implement a blocking feature that will prevent links to Fox News Channel (“FNC”) or Fox Business Network (“FBN”) clips stored on TVEyes’ servers from playing when they are posted to the major social sharing services on the Internet. When TVEyes initially implemented a similar feature in March 2015, it blocked TVEyes content from appearing on 12 major social sharing sites. TVEyes now proposes to expand this blocking feature to a significantly longer list of more that 100 of most popular social sharing websites as identified by Alexa.com, a highly reputable and well-respected independent and publicly 20 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 21 of 53 HIGHLY CONFIDENTIAL available source of analytics about the Internet.11 If a FNC or FBN clip stored on TVEyes’ servers is linked to from one of these sites, the clip will not play when the link is clicked on. To ensure that TVEyes keeps its list of blocked sites current, TVEyes will consult Alexa.com quarterly to add new sites to its list of blocked sites. In addition, to ensure that TVEyes captures all the domain names associated with each social sharing site, TVEyes will cross-reference the list of blocked sites with lists of other domain names associated with these sites (often referred to as “url shorteners”) maintained by Alexa.com and other public information sources to ensure that its list of blocked domains remains comprehensive. See http://www.alexa.com/topsites/category/Computers/Internet/On_the_Web/ Online_Communities/Social_Networking (last visited Oct. 22, 2015). 11 In the Opinion, the Court appeared to hold that TVEyes’ blocking feature was not effective because certain isolated e-mails referenced “subscribers’ ability to share information through social media.” (Op. at 15 n.6.) Respectfully, the Court was mistaken—TVEyes’ blocking feature was implemented on March 6, 2015, while the materials referenced by Fox News and relied upon by the Court purportedly referencing social-media sharing of clips pre-dated March 6, 2015. However, because the ability to view TVEyes clips on social media is not integral to its service, this clarification, along with the proposed safeguard that links saved on servers leased by TVEyes will also be blocked, should assure the Court that this feature will be “reasonably effective.” (Op. at 3 n.3.) Further, while Fox News (footnote continued) 12 21 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 22 of 53 HIGHLY CONFIDENTIAL In addition to blocking user access to links posted to social sharing websites, TVEyes’ proposal would also block links accessed by users through mobile applications associated with those sites. For example, TVEyes’ proposal would not only block links accessed through the website Facebook.com, but also would block access to the link if accessed to Facebook’s mobile iOS and Android applications. Fox News criticizes TVEyes’ blocking proposal, which works by using “HTTP referer information” to block content, by claiming that “some websites do not implement [the referer] field, making it impossible to know what from what website the user clicked on a hyperlink.” Fox News misunderstands how TVEyes’ blocking feature works. TVEyes’ feature uses “referer” information collected by the user’s browser, and all of the major browsers in use today—including Chrome, Internet Explorer, Mozilla Firefox, and Safari, as well as the major mobile browsers issued by Apple, Google and BlackBerry—provide referer information. Websites themselves have very limited control over whether a browser can provide referer information from the site. Because the referer information is provided by the user’s browser (and not the website visited), Fox News’ concern is unwarranted. C. Proposed Limitations On TVEyes’ E-mail Feature. TVEyes permits users to e-mail links to Fox News clips through TVEyes’ Email View/Transcript button and Direct Playback URLs.13 As the Court recognized, “there are many players in the marketplace of ideas,” and TVEyes subscribers must claims that such blocking is not reliable, Fox News has not presented any examples of such blocking to not be effective—the purported examples referred to by Fox News from Beth Knobel’s reports all refer to either pre-March 2015 postings, or postings that were links to Amazon S3 servers. Further, the example listed in Fox News Annex D is not a link to Fox News content. 22 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 23 of 53 HIGHLY CONFIDENTIAL be allowed to share clips via e-mail “to those who need to know what is being said” for purposes of “news reporting, commentary, criticism, teaching, scholarship, research and other fair uses.” (Op. at 14.) Such “players” include “supporting staffs of employees, interns, and independent consultants,” who must be able to transmit and receive that information via e-mail to accomplish their fair use purposes. (Id.) However, the Court expressed concern that, without some limitations on this feature, “there is potential for abuse.” (Id.) Accordingly, the Court asked TVEyes to develop “reasonable and adequate protections” to prevent “indiscriminate sharing” that is “not consistent with § 107.” Id. To respond to the Court’s concerns, TVEyes proposes to place the following limitations on this e-mail feature: 1. Limitation on the number of e-mail recipients. TVEyes will limit the number of recipients outside of a subscriber’s organization’s e-mail domain (or other domains or sub-domains identified by the subscriber as being part of their organization when they sign-up for the service) who can receive any given FNC or FBN clip via TVEyes’ e-mail feature to just five (5) recipients. For example, if TVEyes’ client is Fox News, only five recipients who do not have an e-mail address ending in “@foxnews.com” could receive an e-mailed clip. However, TVEyes will not allow clients to list Gmail or other top email providers (such as Yahoo, EarthLink or Hotmail) as part of their organization—these domains would always be treated as “external” to the client’s organization and thus subject to the 5 recipient limit and the additional protocols described below. These reasonable limitations will prevent “indiscriminate” sharing of clips via TVEyes’ e-mail feature, but still allow essential workers, such as “independent consultants,” to view the clip. Fox News argues that this proposal is “over-inclusive” because it allows TVEyes clients to identify in advance who they may e-mail with without restrictions. But this is precisely the type of reasonable limitation that the Court has asked for—to ensure that e-mails are sent for work-related purposes and consistent with principles of fair use. And because it is not possible to identify every person or entity in advance in an organization might need to view a clip, 23 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 24 of 53 HIGHLY CONFIDENTIAL TVEyes’ proposal would provide clients the limited ability of e-mailing clips to others, subject to the limitations discussed below. By contrast, Fox News’ proposal—which would prohibit TVEyes from allowing users to e-mail clips outside of their organizations at all (and would also limit the ability to view a clip to only one time)—is overly restrictive and does not take into account the Court’s ruling that people outside an organization, such as “independent consultants,” may need to access clips via e-mail for fair use purposes. 2. Authentication process to limit viewing e-mailed clips to authorized users. A recipient of a link to a FNC or FBN clip sent via the TVEyes e-mail feature who is outside the TVEyes clients’ organization will be required to enter her own e-mail address into a box on the screen before the clip will play. If the e-mail address entered does not match the e-mail address entered by the TVEyes client who sent the e-mail, the clip will not play. This limitation will: (1) help ensure that only the intended recipient view the clip; and (2) prevent the “forwarding” and “reforwarding” of clips via e-mail, greatly reducing the “potential for abuse” that could result from the widespread distribution of clips. And, as discussed below (see No. 5), all links sent via TVEyes email feature will be subject to an overall limit of 10 plays, further reducing the risk of “indiscriminate” sharing. Fox News claims that TVEyes’ proposed authentication process is not sufficient because it is possible for an intended recipient to cheat the system by forwarding an e-mail to a third party telling that third party to enter the intended recipient’s e-mail address instead of the third party’s own e-mail address (which would prevent the video from playing). Notwithstanding the conspiratorial nature of this scenario, even assuming that a TVEyes users did attempt to thwart the system in this manner, each link sent via e-mail only can be played a maximum of 10 times. This play limit backstop is sufficient to prevent the indiscriminate, uncontrolled sharing via e-mail that concerned the Court. Further, as noted below (see infra ¶¶3 & 4), TVEyes proposes that anyone who clicks on a link receives a reminder that the clips is to be used for fair use purposes only. Thus, TVEyes has 24 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 25 of 53 HIGHLY CONFIDENTIAL proposed multiple levels of checks to reasonably assure that Fox News clips are used for purposes consistent with § 107. 3. Sender will be reminded that clips are being e-mailed for fair use purposes only. Before a TVEyes client sends a link to a FNC or FBN clip outside of her organization via the TVEyes e-mail feature (see supra ¶1), she will be presented with a prominent notification in the center of her screen that contains: (1) a written reminder that the clip is protected by copyright law and may only be used for the purpose of conducting research and analysis consistent with principles of fair use; (2) a written reminder that the clip may not be publicly shared; and (3) a box that the sender must click, indicating her agreement that she has read and understands this limitation before she is permitted to e-mail the clip.14 This will help ensure that TVEyes subscribers will e-mail links to clips for purposes consistent with fair use. 4. Recipient will be reminded that clips are to be used for fair use purposes only. When a recipient of an e-mail sent via TVEyes email feature containing a link to a FNC or FBN clip clicks on that link to view the clip (after she enters her e-mail address and it is authenticated, see supra ¶2), she will be presented with a prominent notification in the center of her screen that contains: (1) a written notification that the clip is protected by copyright law and may only be used for the purpose of conducting research and analysis consistent with principles of fair use; (2) a written notification that the clip may not be publicly shared; and (3) a box that the recipient must click indicating her agreement that she has read and understands this limitation before she is permitted to view the clip. This will help ensure that recipients of links to TVEyes clips via email will use those clips for purposes consistent with fair use. Fox News criticizes the two proposals above, arguing that “there is no guarantee” the sender or recipient of the e-mailed clips will in fact make a fair use of them. This argument is nonsensical—TVEyes can never guarantee that every user will always make a fair use of the content they access, any more than the manufacturers of a VCR can ensure that the devices they sell never used to make TVEyes notes that TVEyes clients are already required to agree in their user agreements with TVEyes that clips obtained from TVEyes are for internal use only. 14 25 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 26 of 53 HIGHLY CONFIDENTIAL infringing copies. Fox News’ requirement that TVEyes’ “guarantee” its users always make a fair use sets the bar unreasonably high. What TVEyes can do is adopt reasonable measures to ensure that the content accessed is used for the intended purpose, and it can place limits on the extent to which the content can be disseminated. The above two proposals do just that: Both senders and recipients are reminded that the content may not be disseminated and must be used in a manner consistent with fair use, the recipients cannot view the clip unless they are authenticated, and a backstop limit of 10 plays total is associated with every clip. 5. Limitation on total number of times an e-mailed clip can be viewed. TVEyes will limit the total number of times a particular link to a clip e-mailed from a TVEyes client can be viewed to ten (10) views. This limitation ensures that TVEyes clips can be used sufficiently for the purpose of conducting research and analysis, which often requires watching a clip multiple times, but will not be viewed or shared “indiscriminately” in a manner that could harm Fox News’ business. Fox News takes the position that links to Fox News clips that via TVEyes’ email feature should only play one time. This proposal is unnecessarily restrictive and would interfere with the use of the clips for research and analysis. It is common sense that a user might have a legitimate reason to watch a clip multiple times when she receives it initially, and might need to review it again at intervals over the next 32 days, especially given that the use is a fair one. There is no good reason not to allow the legitimate use of clips in this way. The 10 play limit proposed by TVEyes is more than sufficient to prevent the possibility indiscriminate sharing that troubled the Court. 6. Link expiration date. TVEyes will impose an expiration date of 32 days after broadcast on all links to clips sent via the e-mail function, with the exception of links to Media Center clips which will expire 32 days after they are shared by email. If a link sent via e-mail is clicked on after 32 days, the video will not play. This limitation applies to all links to clips sent via the TVEyes email feature, including links to clips permanently stored on TVEyes’ Media Center. This limitation will help prevent the 26 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 27 of 53 HIGHLY CONFIDENTIAL indiscriminate and widespread sharing of links to clips via e-mail. In addition, this length of time is consistent with the 32-day expiration of all non-saved content on TVEyes’ system. This limitation was originally proposed by Fox News and has been adopted by TVEyes in an effort to address Fox News’ concerns. 7. Restricting access to TVEyes’ system. TVEyes will impose restrictions that will prevent two or more TVEyes users from accessing the TVEyes system with the same user credentials at the same time. This is a request proposed by Fox News, which, although unrelated to TVEyes’ e-mailing feature, TVEyes is willing to agree to in the spirit of compromise. This limitation was originally proposed by Fox News and has been adopted by TVEyes in an effort to address Fox News’ concerns. III. TVEYES’ DISAGREEMENTS PROPOSAL. WITH FOX NEWS’ COUNTER- On October 21, 2015 Fox News provided TVEyes with a draft of its submission to this Court. Fox News’ set of demands proposes severe restrictions on TVEyes’ service that make no attempt to balance the need for “reasonable” limitations on TVEyes’ e-mailing feature with the Court’s ruling that the sharing of links to clips by e-mail is consistent with fair use. In addition, Fox News’ proposal contains restrictions that “would prevent TVEyes users from realizing much of the benefit of its transformative service.” (Op. at 14.) Finally, Fox News’ proposal includes demands for the implementation of features that have no bearing on TVEyes’ e-mailing function at all, but rather seek to impose backdoor restrictions on TVEyes’ core service that this Court has already found (twice) to be fair. (See Op. at 10-11.) TVEyes addresses the deficiencies of Fox News’ counter-proposals below. TVEyes also agreed to many suggestions made by Fox News through the meet and 27 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 28 of 53 HIGHLY CONFIDENTIAL confer process; such suggestions are incorporated throughout TVEyes’ proposal above. See supra Part II.B.  Watermarking e-mailed clips. Fox News’ counter-proposal would require TVEyes to place a “conspicuous” watermark on every clip sent via e-mail, containing extensive language. However, watermarking clips sent via TVEyes’ e-mail feature would serve no purpose because: (1) any recipient necessarily already viewed the reminder that emailed clips are for fair use purposes only (see supra Part II.B ¶4); and (2) e-mailed clips cannot be downloaded from TVEyes’ servers, so there is no risk that they would be viewed without first encountering that notice. Further, a watermark could obstruct important information (and in particular, images) contained in the clip, rendering them less useful for conducting fair-use research and analysis. Given that the recipient already receives a prominent notice that TVEyes clips are for fair use purposes only (and that she must confirm having read it by clicking a box), a watermark that repeats the same information but interferes with legitimate, fair-use research does not strike the balance 28 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 29 of 53 HIGHLY CONFIDENTIAL requested by the Court, and does nothing to reduce the possibility of “indiscriminate sharing.”15  All “Public” Sharing Will Be Disabled. Fox News asks the Court to order that “all Fox News video clips will not play when linked to from a website or mobile application.” This restriction would go much, much farther than merely limit “public” sharing. Implementing this measure would have a devastating effect on TVEyes’ business because many TVEyes clients use what Fox News refers to here as “websites” and “mobile applications” as their e-mail services, to share content internally within the bounds of fair use. For example, Fox News’ proposal would prevent any client who accesses his or her work e-mail on a mobile phone from playing a clip sent to her, even though it is unquestionably a fair use. Similarly, clients who collaborate through the use of popular groupware applications, such as Microsoft Outlook, would find themselves unable to view clips on their phones or tablets. As explained above, TVEyes has proposed an effective way of limiting public sharing of Fox News content on social sharing sites, which is what concerned the Court, that does not impact TVEyes clients’ legitimate fair use of Fox News content for internal research and analysis.  Clear and Conspicuous Disclosures. Fox News’ counter-proposal demands that TVEyes to place a lengthy disclosure on every page of its website where Fox content can be accessed stating, inter alia, that: (1) the clips are protected by copyright law; (2) TVEyes has not licensed the content from Fox News; (3) TVEyes subscribers do not have a license from Fox News; (4) any use of content must comply with § 107; and (5) any editing, reproduction, or various other activities are forbidden. Fox News’ proposed disclaimer is entirely unnecessary because it has nothing to do with TVEyes’ e-mail feature. The Court has already determined that the ability to view clips of FNC and FBN content on TVEyes is a fair use, and that neither TVEyes nor its users need a license to view such clips to conduct research and analysis. This is another backdoor attempt to impose restrictions on TVEyes for the portion of this case that Fox News already lost. Moreover, to the extent that Fox News’ proposal is designed to remind users that clips may be e-mailed for fair use purposes only, TVEyes’ proposal of providing such a notice to anyone who sends or receives a clip via Even if TVEyes were to include a watermark on e-mailed clips, notwithstanding that such watermarks would be necessarily redundant and would interfere with the ability to conduct research, Fox News’ proposed language is wrong on the law. 15 29 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 30 of 53 HIGHLY CONFIDENTIAL TVEyes’ e-mail feature addresses such circumstances. (See supra ¶¶3 & 4).  Limitation on E-mail Recipients. Fox News’ counter-proposal would restrict a TVEyes subscriber to only being able to e-mail clips to people within her organization, but not to anyone outside her organization. This does not accommodate clients’ legitimate need to share clips outside of their organizations for fair use purposes—e.g., with “independent consultants,” who the Court recognized as needing access to e-mailed clips for fair use purposes. (Op. at 14.) For example, Fox News’ proposal would prevent a presidential campaign from sharing a clip with a debate consultant, a journalist from sharing a clip with a source for comment, or one local police department sharing a clip with another. Fox also demands that a lengthy and complex disclosure and “click-wrap agreement” be presented every time that a TVEyes user e-mails a clip to someone else inside her organization—an unnecessary and burdensome feature, given that the Court has already recognized that e-mailing clips is fundamental within a workplace, while asking for “reasonable” measures to protect from indiscriminate external sharing.16  Limitation on Timing of Emails. Fox News demands that no clips could be e-mailed until 72 hours after the broadcast airs. This restriction is directly at odds with the Court’s holding that timely access to clips is necessary “to monitor the accuracy of media reports and make timely corrections,” “to track media coverage of military operations in remote locations” and to enable “journalists to research, report on and compare news coverage.” (Op. at 10.) Indeed, the Court specifically recognized that the “24-hour delay” of TV News Archive rendered that service less useful than TVEyes, and that the immediate availability of clips on TVEyes strongly supported its status as a fair use. (Id. at 8 n.4.) Finally, this proposed restriction does not address any of the Court’s concerns about e-mail expressed in the Opinion. Fox News further demands that TVEyes clients be limited to e-mailing a clip to only five recipients within the client’s organization. Fox News offers no reason for such an impossibly narrow limitation. The Opinion articulates no concern about sharing within an organizations walls, nor does Fox News explain why co-workers should be restricted from working together for fair use purposes. Fox News’ proposal disregards the Court’s warning that there are “many players in the marketplace of ideas, each with supporting staffs of employees, interns, and independent consultants.” (Op. at 14) (emphasis added). Fox News’ attempt to micromanage clients’ daily internal workplace should be rejected. 16 30 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 31 of 53 HIGHLY CONFIDENTIAL  Sender Agrees to Terms of Disclosure. Fox News proposes that every time a TVEyes client sends an e-mail (including within her organization) she must read and sign a lengthy “click-wrap” agreement. Fox News’ proposal is unworkable because it would disrupt work-flow and discourage TVEyes clients from making legitimate fair use of the content. TVEyes’ own proposal would first present a sender who sends an e-mail outside her organization with a TVEyes link with: (1) a written reminder that the clip is protected by copyright law and may only be used for the purpose of conducting research and analysis consistent with principles of fair use; (2) a written reminder that the clip may not be publicly shared; and (3) a box that the sender must click, indicating her agreement that she has read and understands this limitation. Fox News provides no explanation for how it would provide any meaningful benefit or protective measure for an intern to enter into a lengthy “click-wrap” agreement every time she sends her boss a link to a clip.  Only Intended Recipients Will Be Able To Play Video Clips. As noted above, Fox News’ proposal would only permit members within a subscriber’s own organization to play video clips; Fox News would completely block clients from sharing clips with anyone outside its organization, such as “independent consultants,” and in this regard it would stifle the legitimate fair use. In addition, Fox News’ proposal would have the recipient of any e-mail from TVEyes read and sign a lengthy “click-wrap” agreement, (and even though the recipient is within the users own organization.). As discussed above, Fox News’ proposal would greatly interfere with the legitimate fair use of clips.  Limitation on Total Number of Times Video Clips Will Be Played. Fox News proposes that any e-mailed clip could play only one time. This limitation is unreasonable because it does not accommodate the many situations in which the recipient may need to view a clip multiple times to accomplish her fair use purpose—for example, to evaluate the “tone of voice, arch of eyebrow, or upturn of lip,” or to accurately count how many times a particular word or phrase is used. (Op. at 9). Further, this limitation is entirely unconnected with the Court’s opinion—the Court articulated no concern about whether a recipient views a clip once or twice, but rather about “indiscriminate sharing.” (Id. at 14.) Fox News’ proposed limitation has no relevance to that concern.  Creation of Auditable Records. Fox News counter-proposes that TVEyes log extensive information pertaining to how Fox News clips are used by TVEyes (such as a user’s IP address and her detailed activity on TVEyes) and then provide Fox News with a monthly 31 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 32 of 53 HIGHLY CONFIDENTIAL accounting of that data. This proposal is outrageous, and it is certainly not a “reasonable” limitation designed to ensure that TVEyes e-mail feature is not being used to indiscriminately disseminate Fox News content widely. Aside from the severe privacy issues implicated by Fox News’ request (e.g., Fox News cannot have access to information about hundreds of members of Congress or the White House’s use of TVEyes clips!), it simply has no right to dip into TVEyes’ business records on a monthly basis to conduct a fishing expedition at TVEyes’ expense. The Court should reject Fox News’ attempt to ascertain TVEyes’ user behavior by using this litigation as a wedge to gain access to TVEyes’ confidential and proprietary business records. Further, Fox News provides no explanation for how giving Fox News access to TVEyes’ proprietary records would reduce indiscriminate sharing, particularly given that TVEyes’ proposed protective measures, from multiple warnings to limits on e-mails, already achieve a reasonable balance. TVEyes need not burden the Court with any further detail of why Fox News’ counter-proposals are obtrusive, unnecessary, and fail to address the Court’s concerns as articulated in the Opinion. It is enough to say that any remaining details of Fox News’ counter-proposals do not provide a reasonable balance that would safeguard clients’ use of e-mail for fair use purposes, but rather only “prevent TVEyes users from realizing much of the benefit of its transformative service.” (Op. at 14.) * * 32 * Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 33 of 53 HIGHLY CONFIDENTIAL Fox News’ Submission: Fox News respectfully suggests that this Court should not attempt to determine what protective measures might constitute a fair use in the future as such an opinion would be (a) a classic impermissible advisory opinion, and (b) directly contrary to binding precedent. Instead, Fox News requests that this Court issue a decree consistent with the August 25, 2015 Opinion that TVEyes is liable for copyright infringement and enjoin TVEyes from providing the Date/Time Viewing Feature and the downloading, emailing, and sharing features. A proposed order is attached hereto as Fox News Annex 1. See infra Part 1. If, however, the Court does attempt to decide what protective measures TVEyes could implement, TVEyes’ proposed protective measures do not meet the test set forth in the Opinion. See infra Part 2. 1. This Court Should Not Make a Determination about Potential Future Fair Uses of TVEyes’ Subscribers and Instead Should Enjoin TVEyes In Part 1(a) below, Fox News sets forth its position that this Court should not issue an advisory opinion as to what TVEyes features may constitute fair use in the future. Instead, Fox News respectfully requests that a decree be entered enjoining TVEyes. At that point, the parties will be prepared to address the question of damages. In Part 1(b) below, Fox News responds to TVEyes’ eleventh hour attempt to raise a new defense in this action. TVEyes’ effort should be rejected. (a) This Court Should Not Issue an Advisory Opinion that Is Contrary to Established Precedent This Court should not make a determination as to whether new protective measures might constitute fair use in the future. First, it is a fundamental principle of American jurisprudence that courts may not issue advisory opinions. Ashcroft v. Mattis, 341 U.S. 171, 172 (1977) (holding that the Court could not consider the merits of an appeal as the decision below was an advisory opinion, and vacating the lower courts’ opinions). The same is true of fair use cases. In Shady Records, Inc. v. Source Enterprises, Inc., the court was asked to issue an opinion as to whether the use of certain song materials would constitute fair use in the future. 371 F. Supp. 2d 394, 396 (S.D.N.Y. 2005). Acknowledging that “[d]eterminations of fair use are highly factintensive decisions,” Judge Lynch held that it would “be highly inappropriate for this Court . . . to issue an advisory opinion about any particular hypothetical use of the material in the future, let alone about all potential use of portion of the works again in the future.” Id. at 397.17 Here, the Court would be attempting to balance the four fair use factors based on potential future events 17 Other courts have similarly refused to issue advisory opinions in fair use cases. See Gladwell Governmental Servs., Inc. v. County of Marin, No. 04 Civ. 3332, 2005 WL 2656964, at *3 (N.D. Cal. 2005) (holding that court “simply has no jurisdiction to provide an advisory opinion [of fair use] on a hypothetical set of facts”); State of Texas v. West Publ’g Co., 681 F. Supp. 1228, 1231 (W.D. Tex. 1988) (holding that it “is not a proper function of the federal courts” to issue an “advisory opinion” on fair use); cf. Disney Enters., Inc. v. Hotfile Corp., No. 11 Civ. 20427, 2013 WL 6336286, at *25 (S.D. Fla. Sept. 20, 2013) (declining to consider whether a DMCA defense would apply to the defendant’s system and business model as they existed after the filing of the complaint). 33 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 34 of 53 HIGHLY CONFIDENTIAL and facts, including TVEyes’ development of effective protective measures,18 and without the benefit of knowing what the effect of TVEyes’ use on the market for and value of Fox News’ works will be in the future. Thus, the Court would be issuing an improper advisory opinion.19 Second, even if such a determination would not constitute an advisory opinion, it would be contrary to established precedent that it is inappropriate to consider the uses made of a service by its users. As discussed extensively in Fox News’ prior briefs, the courts of appeals are in agreement on this issue. See Infinity Broad. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (holding that it is a defendant’s “own retransmission of the broadcasts, not the acts of [its] endusers, that were at issue”); Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 994 (9th Cir. 1998) (holding that Reuters, which was “copy[ing plaintiff’s news] footage and transmitting it to news reporting organizations,” could not rely on its users’ use of the content to support its fair use argument); Los Angeles News Serv. v. Tullo, 973 F.2d 791, 797 (9th Cir. 1992) (holding that “the ultimate use to which the customer puts the tape is irrelevant, as is the use [its] customers make of the tapes [it] sells”). Indeed, Your Honor acknowledged this well-settled legal principle at one of the hearings in this case when Your Honor stated that it was not relevant what TVEyes’ subscribers do with the content provided by TVEyes: “It is what you provide, not what people do with what you provide.” Declaration of Joshua L. Simmons, Esq., dated June 26, 2014, (Dkt. No. 55) (“Simmons Decl.”) Ex. 71 (Discovery Hr’g Tr. 27:2– 16). A determination based on whether protective measures “reasonably assure that, when subscribers share video clips, they do so consistent with § 107,” Op. 15, would be inconsistent with the foregoing precedents and this Court’s prior pronouncement. TVEyes’ sole response to Fox News’ arguments is that the protective measures will eventually be before the Court and that, at that time, the Court may find the features to be fair use (TVEyes does not address Fox News’ second argument at all). TVEyes, however, contradicts itself as it also requests that “the Court confirm that any restrictions ordered by the Court need not be implemented until this action is final.” See supra. In other words, TVEyes does not, in fact, intend to put its proposed protective measures before the Court for a determination of fair use. In any case, on the record that actually is before the Court, it found that the emailing feature does not constitute fair use. Op. 14. As a result, the Second Circuit’s recent decision in Authors Guild v. Google, Inc., cited by TVEyes, actually supports Fox News’ position because it only addressed the limitations that Google had put in place at the time the decision was reached, not proposed future limitations. No. 13-4829, 2015 WL 6079426, at *16 18 As found by this Court, the purported security features that TVEyes claims to already have developed have not worked as TVEyes claimed. Op. 15 n.6 (“TVEyes claims to block users from viewing videos that are accessed through social media sites such as Facebook and Twitter, but Fox argues that the blocks are ineffective. Fox is correct.”). In this joint submission, TVEyes asserts that “the Court was mistaken” in that finding. See supra. Dr. Knobel, however, showed that, even after TVEyes claimed to have put its “safeguards” in place, they did not work. Declaration of Beth Knobel, Ph.D., dated December 15, 2014, (Dkt. No. 94) (“Knobel Decl.”) ¶¶ 131–38; Declaration of Beth Knobel, Ph.D., dated June 18, 2015, (Dkt. No. 150) (“Knobel 2d Decl.”) ¶¶ 12–13; Declaration of Beth Knobel, Ph.D., dated June 18, 2015, (Dkt. No. 150) (“Knobel 3d Decl.”) ¶ 12–14. 19 Transcience Corp. v. Big Time Toys, LLC, cited by TVEyes, is not to the contrary as it involved a breach-ofcontract case, in which the court found that it was improper not to adjudicate whether a breach of contract occurred. 50 F. Supp. 3d 441, 451 n.6 (S.D.N.Y. 2014). The court was not asked to assume a set of hypothetical facts and render a decision based thereon. 34 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 35 of 53 HIGHLY CONFIDENTIAL (2d Cir. Oct. 16, 2015) (limiting its decision to the “snippet view [as] presently designed”).20 Any further determination of fair use would be mere conjecture. Accordingly, Fox News respectfully requests that the Court issue the proposed order attached hereto as Fox News Annex 1. The order is appropriate and supported by the Court’s existing findings:21  First, this Court has held that TVEyes is liable for copyright infringement. In the Court’s September 9, 2014 Opinion and Order, it held that TVEyes is liable for “copyright infringement unless TVEyes shows that its use is fair use.” Order and Opinion, dated September 9, 2014, (Dkt. No 86) (“September 9, 2014 Opinion”), at 11. In light of the Court’s holding in the August 25, 2015 Opinion that TVEyes’ Date/Time Viewing Feature and the downloading, emailing, and sharing features do not constitute fair use as currently designed, liability has been established.  Second, the Opinion discusses the various irreparable harms to Fox News as a result of these features, including the “undue danger” that they “pose . . . to content-owners’ copyrights” and “the “substantial potential for abuse.” Op. 14–16. In particular, the Court found that TVEyes’ Date/Time Viewing Feature “is likely to cannibalize Fox News website traffic and sales by its licensing agents.” Id. at 18. Moreover, Fox News’ submissions in support of its summary judgment motions provide substantial additional support for a finding of irreparable harm.22 As the Second Circuit held in WPIX, Inc. v. ivi, Inc., the retransmission of “copyrighted programming over the 20 The court repeatedly emphasized in its opinion the numerous limitations placed on Google Book’s snippet view: These include the small size of the snippets (normally one eighth of a page), the blacklisting of one snippet per page and of one page in every ten, the fact that no more than three snippets are shown—and no more than one per page—for each term searched, and the fact that the same snippets are shown for a searched term no matter how many times, or from how many different computers, the term is searched. In addition, Google does not provide snippet view for types of books, such as dictionaries and cookbooks, for which viewing a small segment is likely to satisfy the searcher's need. Id. at *13. TVEyes does not implement any of these limitations or analogous limitations, particularly not the limitations that prevent all content from a book being available even as snippets and excludes works that are broken into smaller segments (like television news segments) from the snippet view. 21 TVEyes asserts that the proposed order is flawed because it states that, in Fox News’ complaint, Fox News asserted that TVEyes willfully infringed its rights. As TVEyes well-knows, willfulness is not required for a finding of copyright infringement, which is a strict liability tort, or to enter a permanent injunction. Instead, it is relevant to the award of damages, which both parties have agreed should not be considered at this time. 17 U.S.C. § 504(c)(2). 22 See Knobel Decl. ¶¶ 9–16, 31–189; Declaration of Beth Knobel, Ph.D., dated June 18, (Dkt. No. 150) ¶¶ 4–18; Declaration of Jeff Misenti, dated June 26, 2014, (Dkt. No. 49) (“Knobel 3d Decl.”) ¶¶ 25–30; Declaration of Jeff Misenti, dated May 21, 2015, (Dkt. No. 145) ¶¶ 7–44; Declaration of Jeff Misenti, dated June 18, 2015, (Dkt. No. 149) ¶¶ 3–6; see also Declaration of Elizabeth Ashton, dated June 26, 2014, (Dkt. No. 47) (“Ashton Decl.”) ¶¶ 23–35; Declaration of Elizabeth Ashton, dated May 21, 2015, (Dkt. No. 146) ¶¶ 13–17; Declaration of Sharri Berg, dated June 26, 2014, (Dkt. No. 44) ¶¶ 32–35; Declaration of Timothy Carry, dated June 23, 2014, (Dkt. No. 56) ¶¶ 17–21; Declaration of Jay Wallace, dated June 26, 2014, (Dkt. No. 48) ¶¶ 46–48; Declaration of Andy Williams, dated June 26, 2014, (Dkt. No. 46) ¶¶ 29–33. 35 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 36 of 53 HIGHLY CONFIDENTIAL Internet would substantially diminish the value of the programming,” particularly where such use interferes with a “substantial and growing revenue source for the television programming industry.” 691 F.3d 275, 285 (2d Cir. 2012) (holding that “live retransmissions of [television broadcasters’] copyrighted programming over the Internet” constitutes irreparable harm). As discussed extensively by Fox News and its sister television organizations in their amicus brief (and acknowledged by this Court), the concerns raised by TVEyes’ infringing features are equally concerning.23 Furthermore, the Second Circuit has held under similar circumstances that where an infringement “harms . . . the operation and stability of the entire industry, monetary damages could not adequately remedy plaintiffs' injuries.” WPIX, 691 F.3d at 286. Thus, TVEyes’ bare assertion that a monetary award could compensate Fox News is incorrect and irreparable harm is established.  Third, these harms swing the balance of the hardships in Fox News’ favor. Moreover, after the Court issued the Opinion, TVEyes disabled the Date/Time Viewing Feature and downloading feature for Fox News’ content, tacitly admitting that TVEyes is not harmed by their removal from its service. TVEyes neither rebuts this fact nor asserts that the balance of hardships favors it with regard to these features.24 Instead, it focuses on its emailing and sharing features and claims that it would be at a “competitive disadvantage” if enjoined. The Second Circuit, however, has held that “an infringer of copyright cannot complain about the loss of ability to offer its infringing product.” WPIX, 691 F.3d at 287. Indeed, it went farther and held that an infringer “cannot be legally harmed by the fact that it cannot continue streaming plaintiffs’ programming, even if this ultimately puts [the infringer] out of business.” Id. (internal quotation marks omitted). The injunction proposed by Fox News would not put TVEyes out of business as TVEyes may continue to provide non-infringing features, but it would prevent the harm to Fox News discussed above.25 23 TVEyes’ only response to Fox News’ argument regarding irreparable harm is that the Internet Archive’s TV News Archive also copies and distributes Fox News’ content. That another service also causes harm to Fox News does not reduce the harm cause by TVEyes. Cf. Mrs. U.S. Nat’l Pageant, Inc. v. Miss U.S.A. Org., LLC, 875 F. Supp. 2d 211, 228 (W.D.N.Y. 2012) (“It is well-established that the ‘fact that other infringers may be in the marketplace does not negate irreparable harm’”(quoting Pfizer, Inc. v. Teva Pharms. USA, Inc., 429 F.3d 1364, 1381 (Fed. Cir. 2005))). Moreover, as discussed extensively during summary judgment, the TV News Archive is vastly and critically different from TVEyes as it is a non-commercial project and employs greater protections to avoid the harm caused by services like TVEyes. Knobel Decl. ¶¶ 248–52. For instance, it limits video clips to 60-second segments, which reduces (although does not eliminate) the risk of substitution posed by TVEyes. Id. ¶¶ 248–49. 24 TVEyes merely claims that it should not be penalized for voluntarily disabling the features, but by doing so, TVEyes has revealed the lack of harm it will face if the Court enters Fox News’ proposed order. 25 TVEyes also asserts that Fox News somehow delayed in bringing this lawsuit, but it offers no evidence showing that TVEyes has been harmed by any such delay as would be required under Petrella v. Metro-Goldwyn-Mayer, Inc., to which TVEyes cites. 134 S. Ct. 1962 (2014). Indeed, the Supreme Court specifically cautioned that any consideration of delay would require a court to “closely examine [the defendant’s] alleged reliance on [the plaintiff’s] delay in commencing suit” including the defendant’s knowledge and the protections it could have put in place. Id. at 1966. Given the numerous cases finding clip distribution services like TVEyes to be (footnote continued) 36 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 37 of 53 HIGHLY CONFIDENTIAL  Finally, the public is served by the appropriate application of copyright to prevent the foregoing harms to a key member of the news industry. Indeed, the Second Circuit has held that “the public has a compelling interest in protecting copyright owners’ marketable rights to their work and the economic incentive to continue creating television programming.” WPIX, 691 F.3d at 287. It also has held that “[in]adequate protections for copyright owners can threaten the very store of knowledge to be accessed; encouraging the production of creative work thus ultimately serves the public’s interest in promoting the accessibility of such works.” Id. While TVEyes asserts that an injunction would inconvenience its users, both this Court and the Second Circuit have held that such concerns are outweighed by the need to protect a copyright holder’s interests. Op. 17 (“Convenience alone is not [a] ground for finding fair use.”); WPIX, 691 F.3d at 288 (“The service provided by ivi is targeted more toward convenience than access, and the public will still be able to access plaintiffs’ programs through means other than ivi’s Internet service, including cable television.”). Moreover, Fox News’ proposed injunction does not prohibit access to its content whether through authorized channels or through TVEyes as it only addresses the Date/Time Viewing Features and the downloading, sharing, and emailing features (only the last of which TVEyes asserts serves a public interest worthy of denying an injunction). WPIX, 691 F.3d at 288 (“Preliminarily enjoining defendants’ streaming of plaintiffs’ television programming over the Internet, live, for profit, and without plaintiffs’ consent does not inhibit the public’s ability to access the programs.”). TVEyes asserts in its submission that injunctive relief should be limited to the nineteen Registered Works. TVEyes is wrong. As even the treatise on which TVEyes relies admits: [W]hen there has been a history of continuing infringement of a number of plaintiff’s works and a significant threat of future infringement remains, a permanent injunction may apply not only to the works as to which infringement has already been adjudicated, but also to any other works currently owned by plaintiff, plus even works that plaintiff may create in the future. 5 Nimmer on Copyright § 14.06[C][2][c].26 Similarly, when a defendant made the same argument that TVEyes now advances in Walt Disney Co. v. Powell, the D.C. Circuit held that it was appropriate to enjoin works owned by the plaintiff but not in suit. 897 F.2d 565, 568 (D.C. Cir. 1990); see also Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (“The weight of authority supports the extension of injunctive relief to future works.”). As TVEyes copies all of Fox News’ content and makes it available on its service in the same manner, an injunction covering all of Fox News’ future content is infringing, TVEyes was on more than adequate notice that its use might be held to be infringing, and it has offered nothing to suggest any reliance on the delay it alleges above. 26 TVEyes’ other case citation is inapposite. The out-of-Circuit decision in Universal Furniture International, Inc. v. Collezione Europa USA, Inc. did not extend an injunction to derivative works that may not be infringements due to a lesser taking by the defendant. 618 F.3d 417, 441 n.9 (4th Cir. 2010). No such risk exists here where TVEyes slavishly copies Fox News’ telecasts. 37 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 38 of 53 HIGHLY CONFIDENTIAL appropriate. Moreover, TVEyes’ proposed rule would be impractical as Fox News would be required to bring a separate infringement action for each television program that it produces and the Court, having already determined TVEyes’ liability, would be required to issue an injunction each such time. No such waste of judicial resources is required by copyright law. *** Although Fox News is entitled to relief that also includes damages, 17 U.S.C. § 504, it is Fox News’ position that the Court should complete its emailing/sharing procedure and issue the decree attached as Fox News Annex 1 before the parties address the damages phase of this case. At the parties’ request, the Court delayed discovery and the determination of damages until after the liability phase of this case is complete. Apr. 7, 2014 Hr’g Tr. 23:12–15 (“THE COURT: Both sides want to postpone discovery on damages; is that agreeable? MR. SCHAPIRO: Yes. MS. CENDALI: Yes, your Honor.”). Consistent with the parties’ positions and the Court’s order, Fox News asks that the Court resolve the remaining liability issue in this case before addressing damages. In TVEyes’ section of this joint submission, it agrees with Fox News that this Court should defer the question of damages at this time.27 See supra. (b) TVEyes’ Request to Raise a New Defense Should Be Rejected Above, TVEyes asserts that it is not liable for copyright infringement because it has not engaged in a “volitional act.” This is the first time in the long history of this case that TVEyes has raised this defense. It is untimely and, ultimately, ineffective particularly as the Supreme Court rejected the same argument in American Broadcasting Cos. v. Aereo, Inc. 134 S. Ct. 2498, 2507 (2014) (rejecting argument that system designed to allow subscribers to choose what television programs to view and to copy was a passive actor); see also N.Y. Times Co. v. Tasini, 533 U.S. 483, 490–91, 506 (2001) (holding that provider of automated system infringed copyrights by reproducing and distributing content at request of its users). TVEyes’ New Argument is Untimely. As to timeliness, despite numerous opportunities over the past two years, TVEyes never raised a volitional conduct defense, and it is too late for TVEyes to raise the defense now. Fox News filed its complaint in this case on July 30, 2013. Compl. (Dkt. No. 1). On October 15, 2013, TVEyes answered that complaint raising a host of defenses, none of which related to volitional conduct. Answ. (Dkt. No. 12), at 9–12. On April 7, 2014, the parties appeared before the Court for a status conference, during which Your Honor asked lead counsel for TVEyes for the basis of TVEyes’ defenses. Apr. 7, 2014 Hr’g Tr. 19:4– 22:9 (see Fox News Annex 2 hereto). At no time did TVEyes assert a volitional conduct defense, and all but three of its defenses were struck from its answer. On June 26, 2014, Fox News moved for summary judgment. Its notice of motion expressly requested an order “granting 27 Although TVEyes agrees that “the question of damages should be addressed only” after the Court completes this phase of the case, it misdescribes the parties’ meet-and-confer process. After Fox News responded to TVEyes’ proposal (which addressed proposed protective measures but failed to address the issue of a decree or damages) and despite Fox News repeated requests, TVEyes refused to inform Fox News whether TVEyes would agree to any of Fox News’ counter-proposal. TVEyes continued to refuse to provide that information until this Tuesday morning when it provided Fox News with TVEyes’ section of this joint submission. Without that information, Fox News was unable to make a final determination as to a decree or damages. Nonetheless, it remains Fox News’ position that the issue of damages is best resolved until the Court’s emailing/sharing procedure and the question of injunction relief are resolved. 38 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 39 of 53 HIGHLY CONFIDENTIAL Fox News summary judgment on . . . Fox News’ First Claim (Copyright Infringement),” Fox News Mot. Summ. J. (Dkt. No. 32), at 1, as did its memorandum of law in support. Fox News Mem. Supp. Mot. Summ. J. (Dkt. No. 41), at 25–26 (asserting that “summary judgment in Fox News’ favor on its affirmative copyright claim is warranted”). TVEyes’ opposition to Fox News’ motion was its opportunity to raise its defenses to Fox News’ affirmative claim. Yet, TVEyes’ sole defense to copyright infringement in its opposition to Fox News’ motion was fair use. TVEyes Opp. Fox News Mot. Summ. J. (Dkt. No. 69), at 22. Indeed, despite the fact that TVEyes itself addressed its Date/Time Viewing Feature, as well as its downloading, emailing, and sharing features, TVEyes never raised a volitional conduct defense. Id. at 8. As a result, this Court expressly held that TVEyes is liable for “copyright infringement unless TVEyes shows that its use is fair use.” September 9, 2014 Opinion, at 11. The parties then spent a year engaging in fact and expert discovery and further summary judgment briefing on the issue of fair use, during which TVEyes never raised a volitional conduct defense. In fact, even when TVEyes was presented with an opportunity to raise this issue as part of its proposal in response to the August 25, 2015 Opinion, it failed to do so (see Fox News Annex 3, which is TVEyes’ original September 23, 2015 proposal). Thus, at no time during this case has TVEyes previously raised this defense, and this Court has already ruled for Fox News on the issue of copyright infringement. Raising a new defense at this late date is untimely and should not be permitted. TVEyes’ attempt to raise this defense also is untimely for an independent reason. After this Court issued its September 9, 2014 Opinion, TVEyes only had fourteen days to to request reconsideration or reargument of the determination that it was liable for copyright infringement if it could not establish fair use. Local Civ. R. 6.3. That date has long since passed.28 Even if TVEyes’ request for reconsideration were timely, it cannot meet the standard for such requests. As Your Honor has previously noted, reconsideration is “an extraordinary remedy to be employed sparingly” and not one that is “intended to provide an opportunity to reargue issues that have already been decided.” WTC Captive Ins. Co. v. Liberty Mut. Fire Ins. Co., 537 F. Supp. 2d 619, 623–24 (S.D.N.Y. 2008) (Hellerstein, J.). Indeed, the “criteria are strict” and TVEyes has not identified any of the grounds for which such motions can be granted: “to (1) correct clear error; (2) prevent manifest injustice; or (3) consider newly-available evidence.” Id. at 623 (internal quotation marks omitted); BMS Entm’t/Heat Music LLC v. Bridges, No. 4 Civ. 2584, 2005 WL 2675088, *1 (S.D.N.Y. Oct. 20, 2005) (holding that “reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court” (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995))). Moreover, as Judge Rakoff has held, “It is settled law in this District that a motion for reconsideration is [not] . . . an opportunity for making new arguments that could have been previously advanced.” Associated Press v. U.S. Dept. of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005); Pfizer, Inc. v. Stryker Corp., No. 02 Civ. 8613, 2005 WL 383702, at *1 (S.D.N.Y. Feb. 17, 2005) (a request for reconsideration “is not supposed to treat the court’s initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories . . . in response to the court’s rulings”). Accordingly, even if TVEyes’ new theory were valid (as 28 Even if TVEyes were requesting reconsideration of the August 25, 2015 Opinion, the date has similarly passed. 39 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 40 of 53 HIGHLY CONFIDENTIAL discussed below, it is not), it cannot raise this new argument at this stage in the case in an attempt to re-litigate the issue of infringement. TVEyes’ New Argument Is Not Meritorious. As to the merits of TVEyes’ argument, TVEyes is wrong. TVEyes admitted that it copied each of the Registered Works. Simmons Decl. Ex. 69 (TVEyes Resp. to RFA Nos. 1–38). There is no question that it was TVEyes that made those copies or that it distributed them to its subscribers. Instead, TVEyes attempted (and failed) to assert that it was fair use for it to reproduce Fox News’ content to provide its Date/Time Viewing Feature, as well as its downloading, emailing, and sharing features. August 25, 2015 Opinion, at 3. There simply is no lack of volitional conduct on TVEyes’ part, and its argument is merely intended to further delay resolution of this case.29 TVEyes rests its argument on Cartoon Network LP v. CSC Holdings, Inc., but the case is distinguishable factually and legally. As a factual matter, despite TVEyes’ mischaracterization, the TVEyes system is nothing like the RS-DVR at issue in Cartoon Network. First, unlike a traditional cable system where a telecast is streamed directly to customers’ homes, the Cablevision RS-DVR “split” the stream into two. 536 F.3d at 124. “The first [was] routed immediately to customers as before” and was licensed by the copyright holder. Id. The second stream flowed into the RS-DVR system and was the subject of the dispute. Id. Contrary to TVEyes’ argument, the second stream was not licensed, which is why the Second Circuit needed to consider whether Cablevision itself made a copy of the stream. Critically, the court held that it did not because the RS-DVR system operated by taking the stream and buffering it for 0.1 seconds and then, only if a customer had requested the program, would it be stored in the customer’s account. Id. The court held that Cablevision’s brief buffering of the program did not constitute an act of copyright infringement because it was not stored “for a period of more than transitory duration,” thereby requiring consideration of the copies of the program stored in the customers’ accounts. Id. at 129–30. By contrast, the TVEyes system does not buffer Fox News’ content, but rather stores it on TVEyes’ servers for up to 32 days. Simmons Decl. Ex. 121, at 9. This copying clearly satisfies the threshold for a more than transitory copy. Cartoon Network, 536 F.3d at 130. As a result, there is no need to consider the volitional conduct issue put forward by TVEyes. Second, the court analogized the Cablevision RS-DVR system to a DVR that might appear in a customer’s home—in fact, RS-DVR stands for Remote Storage DVR. The basis for that analogy was that the RS-DVR system “can only play content that [Cablevision’s customers] previously requested to be recorded” and otherwise would be entitled to access. Id. at 125. In other words, once a program aired on television, a Cablevision customer could not go back and record it (just as would be the case with a conventional DVR). The court specifically distinguished the RS-DVR system from Video On Demand (“VOD”) services “where [Cablevision] actively selects and makes available beforehand the individual programs available for viewing.” Id. at 132. The TVEyes system is more akin to a VOD service because TVEyes 29 TVEyes downplays the fact that “TVEyes’ initial [unauthorized] capture of Fox News content is ‘volitional’” by asserting that this Court’s finding of such copying fair use for one purpose immunized all liability. See supra. TVEyes has offered no support for that argument. Moreover, as discussed below, the fact that TVEyes chooses to make unauthorized copies of Fox News’ content shows that it satisfies the volitional conduct requirement. Furthermore, as also discussed below, TVEyes’ recitation of the facts in Cartoon Network is incorrect. 40 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 41 of 53 HIGHLY CONFIDENTIAL selects what channels to provide, and its subscribers can go back and access past programming even if they did not request it to be recorded before it aired. Simmons Decl. Ex. 121, at 14. Moreover, TVEyes allows its subscribers to access telecasts to which they otherwise would not have access. Simmons Decl. Ex. 66 (Ives Dep. (Mar. 20, 2014) 97:16–98:4 (“Q. So TVEyes does not require its subscribers to first have an agreement with a cable company to access Fox News and Fox Business content, right? . . . A. That’s right.”)). Finally, contrary to TVEyes’ misdescription, the Second Circuit did not consider volitional conduct with regard to the distribution or public performance of the telecasts. Instead, the court went on to find that, because each customer had her own copy of the telecast and the copy was only transmitted to the customer herself, there was no transmission to the public. Cartoon Network, 536 F.3d at 139.30 Accordingly, the TVEyes system is not akin to Cablevision’s RS-DVR, and the Second Circuit’s decision is not applicable to this case.31 Instead, TVEyes’ system is more similar to the system at issue in Aereo, a case in which the Supreme Court rejected the same argument now proffered by TVEyes and held that it was immaterial that “Aereo’s system remains inert until a subscriber indicates that she wants to watch a program.” 134 S. Ct. at 2507. In that case, the Court was asked to consider whether a service that “offer[ed] subscribers broadcast television programming over the Internet” was infringing where the system merely used antennae to pick up over-the-air broadcast signals and allowed its subscribers to choose which channels to watch and whether to copy it. Id. at 2503. Aereo and Justice Scalia, in his dissent, advanced the argument that TVEyes now makes. Id. at 2507. The Court, however, rejected that argument, finding that they “ma[de] too much out of too little” as the subscriber’s “click on a website . . . activates machinery that intercepts and reroutes [over-the-air broadcasts] to Aereo’s subscribers over the Internet.” Id. The Court held that, despite Aereo’s passive involvement in the transmission of these over-the-air broadcasts to its subscribers, it acted volitionally: “Aereo performs.” Id. at 2507 (alterations omitted); see also Tasini, 533 U.S. at 491, 506 (holding that electronic service that allowed users to view, print, and download articles infringed copyrights). 30 The same is not true of TVEyes, which stored one copy of each of the Registered Works and then reproduced and transmitted those copies to multiple users. Simmons Decl. Ex. 121, at 4, 16–17. Thus, even under Cartoon Network’s interpretation of the Transmit Clause, TVEyes is liable for the unauthorized distribution and public performance of Fox News’ content. Recognizing this, TVEyes has not raised this argument. 31 The other cases cited by TVEyes are similarly distinguishable. Poindexter v. Cash Money Records did not involve an automated system and the only discussion of volitional conduct was that the plaintiff had sued the wrong music producer. No. 13 Civ. 1155, 2014 WL 818955, at *8 (S.D.N.Y. Mar. 3, 2014) (“It was Bow Wow, and not Cash Money, who created, self-released and self-distributed ‘Green Light 3’ and its recording ‘Still Ballin.’”). Similarly, the defendants in Wolk v. Kodak Imaging Network, Inc., unlike TVEyes, did not make copies of the pro se plaintiff’s copyrighted works themselves; they operated a website onto which third-parties could post images. 840 F. Supp. 2d 724, 728 (S.D.N.Y. 2012). Furthermore, with regard to volitional conduct, the pro se plaintiff failed to come forward with evidence regarding the defendants’ conduct, leaving the defendants’ assertions of a lack of volitional conduct unrebutted. Id. at 742. Unlike TVEyes or Aereo, Dish Network’s system in In re AutoHop Litigation involved a set-top DVR that included a feature that could be used by a subscriber to record television programs, not a service that copies telecasts and then redistributes them to its customers. No. 12 Civ. 4155, 2013 WL 5477495, at *2 (S.D.N.Y. Oct. 1, 2013); see also Fox Broad. Co. v. Dish Network LLC, No. 12 Civ. 4529, 2015 WL 1137593, at *6 (C.D. Cal. Jan. 20, 2015) (same, distinguishing service from Aereo as “DISH Anywhere can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box”). 41 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 42 of 53 HIGHLY CONFIDENTIAL Here, TVEyes actually goes further as it does not passively allow its subscribers to choose what telecasts are recorded, but rather records them itself, copying them to its hard drive, and then redistributing them to its subscribers.32 Courts in this District considering similar systems also have found volitional conduct. For instance, in Arista Records LLC v. USENET.com, the defendants provided a website that allowed for its subscribers to upload content, which the website would store on its servers. 633 F. Supp. 2d 124, 130 (S.D.N.Y. 2009). Its subscribers would then download or otherwise receive that content from the defendants. Id. at 131–32. Like TVEyes, the defendants asserted that they were no more than a “passive carrier” delivering “requested articles to subscribers automatically without active involvement.” Id. at 148. Judge Baer, however, held that the defendants had engaged in volitional conduct because of their active participation in ensuring that unauthorized content was available on the system, “transform[ing] Defendants from passive providers of a space in which infringing activities happened to occur to active participants in the process of copyright infringement.” Id. at 149. Here, TVEyes is a more active participant than the Arista defendants as it chooses and records the telecasts available on its system. These activities alone are sufficient to establish TVEyes’ volitional conduct. See UMG Recording, Inc. v. Escape Media Grp., Inc., No. 11 Civ. 8407, 2014 WL 5089742, at *22 (S.D.N.Y. Sept. 29, 2014) (holding that the defendants “engaged in the required volitional conduct necessary to support a finding of direct infringement” as they “instructed their employees to repeatedly upload substantial volumes of popular copyrighted music files”); cf. Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir. 2015) (holding, in the patent context, that “when an alleged infringer conditions participation in an activity or receipt of a benefit upon” certain actions, those “actions are attributed to the alleged infringer”). Similarly, in Capitol Records, LLC v. ReDigi Inc., ReDigi allowed its users to make their digital copies of music available to others and then to sell those copies, permanently deleting them from the seller’s hard drive. 934 F. Supp. 2d 640, 645 (S.D.N.Y. 2013). ReDigi did not select the music or offer it to users itself, instead designing its automated system to allow its subscribers to do so. Id. at 657. Judge Sullivan held that “absolving ReDigi of direct liability on that ground alone would be a distinction without a difference” as the “fact that ReDigi’s founders programmed their software to choose copyrighted content satisfies the volitional conduct requirement and renders ReDigi's case indistinguishable from those where human review of content gave rise to direct liability.” Id. Moreover, the court distinguished ReDigi from the system in Cablevision: [U]nlike Cablevision, ReDigi infringed both Capitol’s reproduction and distribution rights. ReDigi provided the infrastructure for its users’ infringing sales and affirmatively brokered sales by connecting users who are seeking unavailable songs with potential sellers. Given this fundamental and deliberate role, the Court concludes that ReDigi’s conduct transformed it from a passive 32 Even under the dissent’s framework, TVEyes would have acted volitionally. In his dissent, Justice Scalia argued that the question of who acted volitionally should “come down to who selects the copyrighted content: the defendant or its customers.” Id. at 2513 (Scalia, J., dissenting). Justice Scalia would have found that a VOD service, like TVEyes, which “respond[s] automatically to user input” but also chooses the content that is available, would act volitionally as the “selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.” Id. 42 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 43 of 53 HIGHLY CONFIDENTIAL provider of a space in which infringing activities happened to occur to an active participant in the process of copyright infringement. Id. (alterations omitted). Again, TVEyes goes further than ReDigi as it actively selects and encourages the use of its infringing features, thereby satisfying any volitional conduct requirement. *** Consequently, even if TVEyes were permitted to raise its defense at this late date, doing so would be a fruitless pursuit and a waste of judicial resources. Moreover, Fox News would then ask for the opportunity to assert a secondary liability theory, which would moot the issue. Fox News also notes that TVEyes has suggested that this Court “sua sponte certify its August 25, 2015 order for interlocutory review pursuant to 28 U.S.C. § 1292(b).” If the Court is so inclined, Fox News respectfully requests that Fox News’ proposed decree first be entered, and that the Court also certify review of the September 9, 2014 Opinion so that all fair use issues would be properly before the Second Circuit. 2. TVEyes’ Proposed Protective Measures Do Not Meet This Court’s Test and Are Insufficient The Opinion ordered TVEyes to “develop protocols to reasonably assure that, when subscribers share video clips, they do so consistent with § 107.” Op. at 15. Moreover, it instructed TVEyes to develop protective measures that “prevent indiscriminate sharing” to avoid the “risks [of] becoming a substitute for Fox [News’] own website, thereby depriving Fox [News] of advertising revenue.” Id. While Fox News has attempted to work with TVEyes to develop protocols that reduce (although do not eliminate) the risks articulated in the Opinion, including offering its own proposal and meeting-and-conferring with TVEyes, TVEyes has insisted on proposing to this Court only the limited set of “safeguards” set forth above (the “TVEyes Proposal”). As discussed below, TVEyes’ proposal is insufficient. Thus, again, rather than endorsing a set of protocols that are inadequate to the task, Fox News respectfully suggests that this Court should enjoin TVEyes from providing the sharing and emailing features. If, however, the Court is determined to issue an opinion on this matter, Fox News’ counter-proposal is below. (a) TVEyes’ Proposal Is Insufficient Sharing Features. With regard to sharing, the TVEyes Proposal contains only one suggested limitation.33 TVEyes claims to already limit the playing of Fox News video clips stored on TVEyes servers such that they will not play if linked to by a handful of social media platforms. As discussed below, however, TVEyes’ implementation of that limitation has not worked. TVEyes’ sole proposal would extend that limitation (to the extent it works) to Fox News video clips stored on the Amazon S3 servers rented by TVEyes and other servers rented in the future, and include a few more social media websites and their mobile applications. TVEyes’ proposal does not adequately protect against indiscriminate sharing of Fox News’ content: 33 Fox News notes that TVEyes dramatically changed its proposal mere hours ago and, thus, Fox News’ response herein may not address each deficiencies of TVEyes’ proposal. 43 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 44 of 53 HIGHLY CONFIDENTIAL  First, the TVEyes Proposal is limited to a small number of social media platforms but fails to account for other websites and social media platforms that currently exist or may exist in the future. For instance, the list TVEyes proposes to rely upon to determine the “most popular social sharing websites” does not include the wellknown Instagram social media platform and, thus, would not prevent links on that platform to Fox News content from playing (see Fox News Annex 4 hereto, which is an example of a link to a TVEyes-created video clip being posted to Instagram) or from the many websites identified by Dr. Knobel (see Knobel Decl. ¶ 79, Ex. 22; Knobel 2d Decl. ¶ 23–24, Ex. 159). Indeed, there is no way to know how Alexa determines what constitutes a “social networking” website, what it considers a “top” website, or whether Alexa will continue to exist in the near or long-term future—it certainly does not include all websites on which links to TVEyes can be shared. In fact, during the parties’ meet-and-confer, counsel for TVEyes confirmed that TVEyes purposefully did not include domain names for non-social media websites.  Second, the TVEyes Proposal does not account for changes in technology such as the use of mobile applications to access Internet content. For example, Twitter users generally do not access content through the web-based Twitter interface, but rather through Twitter’s iOS and Android applications. See, e.g., Ewan Spence, The Mobile Browser Is Dead, Long Live The App, FORBES, Apr. 2, 2014, http://www.forbes.com/sites/ewanspence/2014/04/02/the-mobile-browser-is-deadlong-live-the-app/ (see Fox News Annex 5 hereto). While the proposal would include any mobile applications associated with websites on Alexa’s list, it would not include mobile applications or other technology unassociated with those websites or with a website at all.  Third, even among the platforms that TVEyes has identified, the TVEyes Proposal is limited to specific domain names associated with those platforms. As a result, other domain names associated with those platforms would not be included. For instance, TVEyes would limit links from the twitter.com and t.co domain names, but it would not limit other Twitter domain names such as twitter.fr.  34 TVEyes claims that Fox News’ examples are limited to pre-March 2015 or links to TVEyes’ other servers, but that is not the case. Dr. Knobel investigated TVEyes’ claimed protective measures in June, posting links to video clips created in May and June to Facebook, Twitter, and YouTube. Knobel 3d Decl. ¶ 12. They all functioned normally. 44 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 45 of 53 HIGHLY CONFIDENTIAL Email Limitations. TVEyes’ email limitations are equally insufficient:  First, just as with TVEyes’ sharing limitation, TVEyes’ ability to design emailing limitations for its system that work properly are suspect in light of TVEyes’ past representations about limitations in its system that this Court and Dr. Knobel found did not work. Op. 15 n.6; Knobel Decl. ¶¶ 131–38; Knobel 2d Decl. ¶¶ 12–13; Knobel 3d Decl. ¶¶ 12–15. Moreover, TVEyes’ proposal would not monitor TVEyes’ users to ensure compliance with this Court’s Opinion, or allow such records to be audited by Fox News.  Second, TVEyes has not indicated whether the TVEyes Proposal would apply to video clips archived using TVEyes’ Media Center. For instance, TVEyes’ Sixth proposal is that video clips will not play after 32 days. As the Court is aware, unless a video clip is saved to the TVEyes Media Center, TVEyes automatically ceases providing video clips after 32 days (archived video clips are saved permanently). Thus, on the one hand, if the TVEyes Proposal is limited to non-archived video clips, TVEyes’ Sixth proposal adds nothing new to the system. On the other hand, if the TVEyes Proposal is intended to include sharing and emailing archived video clips (for instance, using the Direct Playback URL’s that TVEyes continues to provide to its users), it has failed to identify how it intends to do so. Earlier today, TVEyes amended its proposal to add that it would cease providing Direct Playback URLs for 35 For more information about the HTTP referrer header field, Fox News respectfully refers the Court to the World Wide Web Consortium’s description: http://www.w3.org/Protocols/HTTP/HTRQ_Headers.html#z14 (attached hereto as Fox New Annex 6, see page 3). 36 While TVEyes claims without support that a website cannot disable the HTTP referrer header field, the ability not to implement this header field was included in HTML5: http://www.w3.org/TR/html5/links.html#link-typenoreferrer (attached hereto as Fox News Annex 7, see Page 16). Similarly, the field is generally not available when a website uses secured HTTP (HTTPS), as most modern websites do: http://makandracards.com/makandra/15931-browsers-will-not-send-a-referrer-when-linking-from-https-to-http (attached hereto as Fox News Annex 8). 37 Fox News also notes that, even if a video clip does not play, TVEyes’ counsel has stated that the TVEyes website will still be shown to the visitor, thereby encouraging more users to become subscribers and thereby continuing to incentivize TVEyes to encourage indiscriminate sharing. 45 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 46 of 53 HIGHLY CONFIDENTIAL FNC and FBN content (instead directing users to the emailing feature), but it did not indicate whether users would continue to be able to use the emailing feature after 32 days. In other words, will TVEyes subscribers who save permanent copies of a video clip be able to e-mail that video clip to others for an indefinite period of time?  Third, under the TVEyes Proposal, TVEyes’ users would be permitted to email video clips to anyone within their organization. As defined by TVEyes, individuals within a subscriber’s organization would include (a) anyone with the same domain name in their email address as the user (e.g., at J.P. Morgan Chase, anyone with an @chase.com domain name in their e-mail address), or (b) anyone with a domain name in their email address that the subscriber identifies as being part of their organization (e.g., Chase could request that @wellsfargo.com be included). This proposal is ripe for abuse as a subscriber may identify all manner of domain names, including those that are not members of their organizations (in the foregoing example, adding @wellsfargo.com would include the countless employees of Wells Fargo). Furthermore, while TVEyes claims that it “will not allow clients to list Gmail or other top email providers” it does not provide a list or criteria for making the determination of what constitutes a “top email provider,” leaving the system open to abuse. Such abuse is likely given that, despite TVEyes’ previous assertion that its users only used its service internally, they clearly did not (and even within an organization use may not be fair use). Moreover, multiple organizations may use a similar domain name in their email address, and TVEyes’ proposal would not eliminate indiscriminate sharing between them. As a result of the foregoing, TVEyes’ definition of a subscriber’s organization is over-inclusive.  Fourth, TVEyes has not proposed any kind of limitation on the recipients to whom an email could be sent. This Court specifically noted that “TVEyes’ e-mailing feature cannot discriminate between sharing with a boss and sharing with a friend,” which has “substantial potential for abuse.” Op. 14. Under the TVEyes Proposal, each video clip identified using TVEyes’ service could be sent to anyone, including friends or others as part of a “sales pitch.”38 Furthermore, despite TVEyes’ First proposal’s suggestion that the number of recipients will be limited to five, that is not the case. According to TVEyes’ counsel, TVEyes intends to implement the limitation by only including space for five email addresses in TVEyes’ user interface for the emailing feature. Once those emails are sent, however, the TVEyes Proposal does not include any protection against further emailing. Thus, a user easily could include herself as a recipient,39 and then forward the email to others telling them to use her email address when accessing the video clip. 38 TVEyes claims that Fox News’ criticism would be “overly restrictive,” but it does not respond to the criticism itself. Indeed, TVEyes has not offered a protective measure that would prevent such use by its subscribers. 39 Fox News notes that, under the TVEyes Proposal, a user that includes herself as a recipient would not count against the five recipients as the user would be within her own organization. 46 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 47 of 53 HIGHLY CONFIDENTIAL  Fifth, the TVEyes Proposal would not, in fact, limit the uses of an emailed video clip. Again, this Court expressly found that “TVEyes’ emailing feature cannot discriminate . . . between sharing for inclusion in a study and sharing a clip for inclusion in a client sales pitch.” Op. 14. The TVEyes Proposal has not addressed that concern.40 At best, TVEyes’ Third and Fourth proposals would present a “reminder” before a clip is sent and when a video clip is viewed, but there is no guarantee that the individuals who receive video clips using TVEyes’ emailing feature will, in fact, abide by TVEyes’ reminder (as they clearly have not done so to date with any of TVEyes’ other supposed security measures). Moreover, the reminder does not accurately reflect the bounds of fair use law or provide a sufficient warning against the inappropriate use of video clips provided by TVEyes. In fact, the reminder that TVEyes has proposed is less restrictive than the notice that TVEyes placed on the Media Download page to which TVEyes repeatedly referred the Court during summary judgment: “Material supplied by TVEyes, Inc. may be used for internal review, analysis or research only. Any editing, reproduction, publication, rebroadcasting, public showing or public display is forbidden.”41 Furthermore, the TVEyes Proposal does not address what TVEyes would do if a user violates TVEyes’ policies, such as terminating such subscribers, informing Fox News, or suing them for breach-of-contract.  Sixth, the TVEyes Proposal does not sufficiently provide a means of confirming that the person attempting to view a video clip is the one to whom the video clip was sent. For instance, despite TVEyes’ Second proposal, there is nothing to stop an intended recipient, after receiving a video clip, from forwarding it to others and telling them to enter the intended recipient’s email address. As a result, despite TVEyes’ claim to the contrary, the proposal does not “prevent the ‘forwarding’ and ‘re-forwarding’ of clips via e-mail.”  Seventh, despite TVEyes’ naked claim that “research and analysis . . . often requires watching a clip multiple times,” it has offered nothing to indicate that is the case. Indeed, under the TVEyes Proposal, anyone within a subscriber’s organization would not be bound by any limitation at all. It is hard to imagine to whom a video clip would be sent that would require multiple viewings. In any case, ten views by individuals outside of an organization is far too likely to lead to abuse.42 40 TVEyes asserts that Fox News’ criticism somehow sets a higher standard than that set by this Court. The Opinion, however, instructed TVEyes to “develop protocols to reasonably assure that, when subscribers share video clips, they do so consistent with § 107.” Op. 15. The TVEyes Proposal does not accomplish that goal. 41 See TVEyes Rpl. Mem., dated August 7, 2014, (Dkt. No. 76), at 6; TVEyes Supp. Mem., dated May 21, 2015, (Dkt. No. 133), at 10, 25; TVEyes Opp. to Fox News Supp. Mem., dated June 18, 2015, (Dkt. No. 139), at 49, 52. 42 According to counsel for TVEyes, this limitation will be implemented by counting the number of times a unique URL for a video clip is visited, and the video clip will not load if the number of visits exceeds ten. 47 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 48 of 53 HIGHLY CONFIDENTIAL For the foregoing reasons, the TVEyes Proposal does not adequately respond to the concerns highlighted in this Court’s August 25, 2015 Opinion and should not be adopted. (b) Fox News’ Counter-Proposal of Protective Measures While Fox News strongly urges this Court not to issue an advisory opinion as to what protective measures TVEyes might be able to implement in the future, if this Court moves forward with this process, Fox News proposes the following protective measures.44 For the convenience of the Court, Fox News responds to TVEyes’ criticisms of each of Fox News’ protective measures in turn below. For a clean list of Fox News’ proposal, however, Fox News respectfully refers the Court to Fox News Annex 9 attached hereto. 1. Security Measures to Prevent Downloading and Indiscriminate Sharing of Emailed Video Clips. TVEyes takes the position that these security measures are not related to TVEyes’ emailing function. As TVEyes’ own proposal shows, however, the parties were asked to address protective measures related to both its sharing and emailing features that would “prevent indiscriminate sharing.” Op. 15. It only stands to reason that TVEyes should implement conventional and reasonable security measures as part of its service to prevent such sharing by its subscribers, their users, and those to whom its users distribute Fox News’ content. Moreover, contrary to TVEyes’ assertion, Fox News has repeatedly raised concerns about TVEyes’ implementation of security measures throughout this case, including in the declarations of Dr. 43 While there are numerous such tools available for free on the Internet, one such tool is movavi, which allows users to “capture online video” and save it to their hard drives: http://www.movavi.com/support/how-to/how-tocapture-streaming-video.html. 44 TVEyes asserts that Fox News’ proposal is overly restrictive and somehow is unrelated to TVEyes’ sharing and emailing features. See supra. That clearly is not the case. It is Fox News’ position that even these measures do not provide adequate protection against the concerns raised by Fox News and discussed in the Opinion. Nevertheless, Fox News has proposed them in an attempt to reach an amicable compromise position with TVEyes. 45 While TVEyes claims that Fox News’ proposed language is wrong, the language actually comes from the notice that TVEyes includes on its own Media Download webpage. TVEyes Rpl. Mem., dated August 7, 2014, (Dkt. No. 76), at 6. 48 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 49 of 53 HIGHLY CONFIDENTIAL Knobel. Knobel Decl. ¶¶ 131–38; Knobel 2d Decl. ¶¶ 12–13; Knobel 3d Decl. ¶¶ 12–15. As to implementing DRM and true streaming, TVEyes claims that implementation would be “prohibitively expensive and extremely burdensome,” but it has not substantiated that proposition. Indeed, as this Court noted at oral argument, “some feature of digital rights management could be the technological way that could identify how subscribers use the material that is transmitted from TVEyes.” July 28, 2015 Hr’g Tr. 38:14–17 (see Fox News Annex 10 hereto). With regard to watermarking emailed video clips, TVEyes asserts that doing so would be redundant as under its proposal users would be reminded of the permissible uses of its video clips. As discussed above, TVEyes’ proposed reminder is insufficient. Even if that were not the case, it does not protect against the possibility that TVEyes’ video clips, unprotected by the security measures proposed by Fox News, could be captured from TVEyes’ website and shared indiscriminately. A straightforward watermark will make such sharing less likely. Moreover, the use of watermarks is common practice in the industry. See Knobel Decl. ¶ 68–69; Ashton Decl. ¶ 9. Indeed, TVEyes already includes a watermark on Sky News video clips, which cannot be downloaded: TVEyes-Created Video Clip of Sky News TVEyes-Created Video Clip of Sky Sports News In any case, even if Fox News’ proposal were redundant, that is not a legitimate basis not to include it as a protective measure. 2. Public Sharing Will Be Disabled. TVEyes-created video clips of Fox News content will not play unless accessed through the TVEyes service by a logged-in TVEyes user or accessed by a member of a TVEyes user’s organization as a result of an e-mail generated by the TVEyes e-mailing feature. As new social sharing websites and mobile application are being developed all the time, the video clips will not play when linked to from a website or mobile application. In addition, TVEyes will prevent two users from accessing the TVEyes service using the same credentials at the same time. TVEyes takes the position that Fox News’ proposal will prevent TVEyes from allowing clients that use web-based e-mail platforms or mobile applications for email to review video clips. TVEyes’ own proposal, however, would “not allow clients to list Gmail or other top email providers . . . as part of their organization” and would treat “these domains . . . as ‘external’ to the client’s organization.” Thus, TVEyes’ concern rings hallow. Even if that were not the case, 49 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 50 of 53 HIGHLY CONFIDENTIAL during the parties’ meet-and-confer, counsel for Fox News offered to consider specific exceptions to this limitation if TVEyes would identify them. TVEyes never did. Thus, instead of opting out legitimate email platforms, TVEyes would only limit the posting of links to video clips on a limited number of social media websites and their mobile applications. Fox News’ proposal, by contrast, allows for limited emailing but hedges off the possibility of “indiscriminate sharing.” 3. Clear and Conspicuous Disclosures. TVEyes will include clear and conspicuous disclosures on each webpage upon which Fox News’ content can be accessed or viewed indicating that: (a) the content is protected by copyright law; (b) TVEyes has not licensed the content from Fox News; (c) TVEyes’ subscribers are not licensed to the content, including for purposes of reproduction, distribution, creation of new works, display, or performance; (d) any use of the content by TVEyes’ subscribers must be consistent with 17 U.S.C. § 107; and (e) any editing, reproduction, publication, rebroadcasting, public showing (including on intranet or publicly available websites), or public display is forbidden (the “Disclosure”). TVEyes takes the position that Fox News’ requested disclosures either do not relate to its emailing feature or are redundant of TVEyes’ proposed “reminders.” As discussed above, however, Fox News is concerned about the lack of security of TVEyes’ website and the possibility that indiscriminate sharing could be accomplished by a user downloading a video clip from TVEyes’ website and sharing it with others. Fox News’ proposed disclosures would remind such users that such use is not permissible. Moreover, if Fox News’ proposal truly were redundant, that is not a basis not to include it as a protective measure. 4. Limitation on the Timing and Number of Email Recipients. The TVEyes emailing feature will not become available for 72 hours after the telecast of Fox News’ programming. It will only allow a TVEyes user to send a TVEyes-created video clip of Fox News content to five recipients within the user’s organization (the “Intended Recipients” and each an “Intended Recipient”). 5. Sender Agrees to Terms of Disclosure. Prior to each use of the TVEyes emailing feature, TVEyes’ users will be presented with a clear and conspicuous copy of the Disclosure and will be required to agree to its terms in a click-wrap agreement. The TVEyes emailing feature will generate one-time use only temporary credentials (i.e., a user name and password) for each Intended Recipient. TVEyes will then e-mail those credentials along with a link to the TVEyes-created video clip on the TVEyes website to the Intended Recipient. TVEyes asserts that requiring its users to agree to the Disclosure prior to sending a video clip is “unnecessary and burdensome.” TVEyes, however, already proposes providing a “reminder” to its users and having them “agree” to its terms. Fox News’ proposal only takes that concept one step farther by asking them to agree to the straightforward terms of the Disclosure. Doing so is not unnecessary or burdensome. TVEyes also objects to Fox News’ limitation of the emailing feature to five recipients within the user’s organization. Fox News’ proposal, however, is a reasonable compromise between TVEyes’ interest in permitting the indiscriminate distribution of Fox News’ content (despite ample evidence of such distribution for improper purposes) and Fox News’ interest in 50 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 51 of 53 HIGHLY CONFIDENTIAL protecting its content. TVEyes has pointed to no actual instance (as opposed to the conclusory assertions of its CEO) in which sharing beyond Fox News’ proposal has occurred for a legitimate purpose.46 Finally, TVEyes takes the position that Fox News’ limitation of the emailing feature to 72 hours after its content is telecast would be unreasonable. Fox News’ proposal, however, does not address access to such video clips directly using the TVEyes system. Instead, it is solely directed to the use of the emailing feature. This protective measure is important because it will help reduce (although not eliminate) the effect on the market for and value of Fox News’ video clips by limiting the direct competition between TVEyes’ service and Fox News’ businesses. This will help ensure that emailing is done “consistent with § 107,” including the fourth fair use factor. 6. Only Intended Recipients Will Be Able to Play Video Clips. The video clip will not play for anyone other than the Intended Recipient. The Intended Recipient will be required to agree to the terms of the Disclosure in a click-wrap agreement and to enter his or her credentials and e-mail address before the video will play. The video clip will not play if (a) the credentials are invalid, (b) the credentials do not match the Intended Recipient’s e-mail address, (c) the e-mail address does not match one of the Intended Recipients, or (d) the e-mail address includes a domain name different than that of the sending TVEyes user. After three failed attempts from the same IP address, TVEyes will blacklist the IP address and cease providing video clips to that IP address. TVEyes raises the same concern about Intended Recipients agreeing to the Disclosure that it raised with regard to senders agreeing to the Disclosure above. For the same reasons, TVEyes’ argument is inapposite, particularly in light of its own proposal that recipients agree to its “reminder.” Similarly, TVEyes re-asserts its arguments about limiting the playing of video clips to those within a client’s organization, to which Fox News has responded above. 7. Limitation on Total Number of Times Video Clips Will Be Played. Each video clip distributed using the TVEyes emailing feature will only play once for each Intended Recipient and only within two weeks of the initial telecast. TVEyes takes the position that limiting the playing of video clips to once for each Intended Recipient is too limiting. Yet, TVEyes’ naked claim that “there are many situations in which the recipient may need to view a clip multiple times to accomplish her fair use purpose” lacks any support. Moreover, TVEyes’ claim that a limitation on the number of times a clip will play is inappropriate is directly belied by the fact that its own proposal would limit the number of plays to ten. See supra. In any case, if multiple reviews were necessary, the recipient could request that the video clip be sent to her again. 46 TVEyes also asserts that limiting emailing within an organization to five recipients is too narrow. Yet, in most cases, the number of individuals without their own access to the TVEyes service who would need a clip emailed to them is likely to be few: to take the Court’s example, an employee “sharing with a boss.” Op. 14. TVEyes simply has not provided any reason that emailing within an organization needs to be wholly unrestricted. 51 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 52 of 53 HIGHLY CONFIDENTIAL 8. Creation of Auditable Records. Each use of the TVEyes emailing feature by a TVEyes user will be logged and maintained by TVEyes, including the user’s name, the subscriber’s name, the content e-mailed, the date and time on which it was emailed, and each Intended Recipient. TVEyes also will log each time a video clip of Fox News’ content is played, including the content viewed; the user’s name; the subscriber’s name; the duration of the video clip; whether the video clip was shared using the emailing feature and, if so, the Intended Recipients; how many times the content was viewed; the IP address associated with each viewing; the date and time on which it was viewed; and proof that the viewer accepted the click-wrap agreements discussed above. TVEyes will provide Fox News with a monthly accounting of all such information to ensure that Fox News’ content is not being virally distributed. TVEyes asserts that this proposal is unreasonable for the very reason that it is necessary: it will allow Fox News to confirm that TVEyes’ emailing feature is being used “consistent with § 107,” Op. 15, as opposed to for “indiscriminate sharing.” Id. Fox News’ proposal is no different than in any business arrangement in which one party agrees to accomplish a goal, and the other party has an opportunity to inspect records to confirm that the goal was accomplished. For instance, it is common practice that businesses audit each other’s financial records. This proposal is far less burdensome than that. TVEyes already logs how its users operate its system. Indeed, TVEyes produced a nearly 17 Gigabyte file of such information during discovery. Fox News merely requests that TVEyes include the foregoing information as part of that recording function and allow Fox News to review the records on a monthly basis. This proposal is made necessary as a check to ensure that any protective measures TVEyes implements work appropriately. As the Opinion acknowledges, the TVEyes service has been used in the past (with TVEyes’ encouragement) for improper purposes. Similarly, the measures that TVEyes has implemented to date have not worked as TVEyes suggested that they would. Op. 15 n.6; Knobel Decl. ¶¶ 131–38; Knobel 2d Decl. ¶¶ 12–13; Knobel 3d Decl. ¶¶ 12– 15. If the Court orders TVEyes to implement specific protective measures (and Fox News is still of the belief that doing so would be improper), there must be some mechanism for Fox News to ensure that TVEyes implements those protective measures properly and that they work as the Court and the parties believe they will.47 *** For the foregoing reasons, Fox News respectfully requests that this Court issue the decree and proposed order attached hereto as Fox News Annex 1 and not attempt to issue an advisory opinion as to what protective measures could, potentially, make TVEyes’ emailing feature constitute fair use. If, however, the Court does attempt to decide what protective measures TVEyes should implement, Fox News requests that the Court adopt Fox News’ proposal. 47 Fox News notes that this concern is exactly the reason that issuing an opinion on this matter would constitute an advisory opinion: neither the parties nor the Court actually know how the protective measures will be implemented or what their effect will be. 52 Case 1:13-cv-05315-AKH Document 186 Filed 11/16/15 Page 53 of 53 HIGHLY CONFIDENTIAL Dated: October 22, 2015 Respectfully submitted, Respectfully submitted, /s/ Dale M. Cendali Dale M. Cendali Johanna Schmitt Joshua L. Simmons KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 dale.cendali@kirkland.com johanna.schmitt@kirkland.com joshua.simmons@kirkland.com /s/ Todd Anten Todd Anten toddanten@quinnemanuel.com Jessica A. Rose jessicarose@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 (212) 849-7000 Attorneys for Defendant TVEyes, Inc. Attorneys for Plaintiff Fox News Network, LLC 53