Fox News Network, LLC v. TVEyes Inc., Docket No. 1:13-cv-05315 (S.D.N.Y. Jul30, 2013), Court Docket 

Printed By: TOR EKELAND on Monday, August 5, 2013 - 11:01 AM 

•JS.44C/SDNY

REV. 7/2012

Ninncni*.. CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace norjupplement the| fj ing and service ofpleadings or other papers as required by law, except as provided by loca^ule:Judicial Conference ofthe United States inSeptember1974, is required fo|initiating the civildocket sheet.

'rfy'appro'for the 315^20t3PLAINTIFFS

Fox News Network, LLC

DEFENDANTS

TVEyes Inc.JUL

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

Kirkland & Ellis LLP

601 Lexington Avenue, New York, New York 10022(212)466-4800

ATTORNEYS (IF KNOWN)

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENfT(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Copyright Infringement, 17 U.S.C. § 101 et seq.

OFCAUSE)

Has this ora similar casebeen previously filed in SDNY at any time? No [x] Yes • Judge Previously Assigred

If yes, was this case Vol. • Invol. • Dismissed. No fj Yes • If yes, give date, & Case No.

IS THISAN INTERNATIONAL ARBITRATION CASE? No

(PLACE AN[x]IN ONEBOXONLY)

Yes D

NATURE OF SUIT

) 110]120] 130]140

1150

[ 1153

[ 1160

[ 1190

1195

PERSONAL INJURY

( ]310 AIRPLANE[ ]315 AIRPLANE PRODUCT

LIABILITY

[ ] 320 ASSAULT, LIBEL&SLANDER

[ ] 330 FEDERALEMPLOYERS'

LIABILITY

[ ] 340 MARINE[ ]345 MARINE PRODUCT

LIABILITY

[ ] 350 MOTOR VEHICLE[ ] 355 MOTOR VEHICLE

PRODUCT LIABILITY

[ J 360 OTHER PERSONALINJURY

INSURANCE

MARINE

MILLER ACT

NEGOTIABLE

INSTRUMENT

RECOVERY OF

OVERPAYMENT &

ENFORCEMENT

OF JUDGMENT

MEDICARE ACT

RECOVERY OF

DEFAULTED

STUDENT LOANS

(EXCL VETERANS)RECOVERY OF

OVERPAYMENT

OF VETERAN'S

BENEFITS

STOCKHOLDERS

SUITS

OTHER

CONTRACT

CONTRACT

PRODUCT

LIABILITY

196 FRANCHISE

ACTIONS UNDER STATUTES

PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY

[]362 PERSONALINJURY - []610MED MALPRACTICE [ ] 620

[ ] 365 PERSONAL INJURYPRODUCT LIABILITY [ ] 625

[ ] 368 ASBESTOS PERSONALINJURY PRODUCT

LIABILITY

PERSONAL PROPERTY

[ ]630[ ]640[ ]650[ ]660

[ ]690

AGRICULTURE

OTHER FOOD &

DRUG

DRUG RELATED

SEIZURE OF

PROPERTY

21 USC 881

LIQUOR LAWSRR & TRUCK

AIRLINE REGS

OCCUPATIONAL

SAFETY/HEALTH

OTHER

FEAL

USC 158

ITHDRAWAL

USC 157

1422 A=>l2)1

1423 W21!

PROPERTY

04 820 COPYRIGHTS[ ]830 PATENT[ ] 840 TRADEMARK

SOCIAL S EOURITY

]370]371]380

]385

OTHER FRAUD

TRUTH IN LENDING

OTHER PERSONAL

PROPERTY DAMAGE

PROPERTY DAMAGE

PRODUCT LIABILITY LABOR [ ]861 HIA[ ]862 B./SCK[ ] 863 DIVY[ ]864 SSI[ ]865 RSI

(1395ff)LUNG (923)

C/DIWW (405(g))ID TITLE XVI

(405(g))PRISONER PETITIONS

[ ]510 MOTIONS TOVACATE SENTENCE

20 USC 2255 [ ] 740[ ] 530 HABEAS CORPUS [ ] 790[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS &OTHER [ ] 791

1710

[ ]720

[ ]730

FAIR LABOR

STANDARDS ACT

LABOR/MGMT

RELATIONS

LABOR/MGMT

REPORTING &

DISCLOSURE ACT

RAILWAY LABOR ACT

OTHER LABOR

LITIGATION

EMPL RET INC

SECURITY ACT

FEDERAL

[ ]870

TAX SUITS

(U.S. Plaintiff orT<VXES

Defendant)•THIRD PARTY

USC 7609

[ ] 871 IFtS25

REAL PROPERTY

ACTIONS UNDER STATUTES

CIVIL RIGHTS

[ ]441 VOTING[ ]442 EMPLOYMENT[ ]443 HOUSING/

ACCOMMODATIONS

[ ]444 WELFARE[ ]445 AMERICANS WITH

DISABILITIES -

EMPLOYMENT

[ ]446 AMERICANS WITHDISABILITIES -OTHER

[ ] 440 OTHER CIVIL RIGHTS(Non-Prisoner)

IMMIGRATION

220

230

240

245

LAND

CONDEMNATION

FORECLOSURE

RENT LEASE &

EJECTMENT

TORTS TO LAND

TORT PRODUCT

LIABILITY

ALL OTHER

REAL PROPERTY

PRISONER CIVIL RIGHTS

[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION

[ ]462

[ ]463

[ )465

NATURALIZATION

APPLICATION

HABEAS CORPUS-

ALIEN DETAINEE

OTHER IMMIGRATION

ACTIONS

OTHER STATUTES

[ ]400

]410]430]450]460]470

]480]490]810]850

[ ]875

[ J890

[ I

]893

]894

]895

]900

[ J 950

STATE

REAPPORTIONMENT

ANTITRUST

BANKS & BANKING

COMMERCE

DEPORTATION

RACKETEER INFLU

ENCED & CORRUPT

ORGANIZATION ACT

(RICO)CONSUMER CREDIT

CABLE/SATELLITE TV

SELECTIVE SERVICE

SECURITIES/

COMMODITIES/

EXCHANGE

CUSTOMER

CHALLENGE

12 USC 3410

OTHER STATUTORY

ACTIONS

AGRICULTURAL ACTS

ECONOMIC

STABILIZATION ACT

ENVIRONMENTAL

MATTERS

ENERGY

ALLOCATION ACT

FREEDOM OF

INFORMATION ACT

APPEAL OF FEE

DETERMINATION

UNDER EQUAL

ACCESS TO JUSTICE

CONSTITUTIONALITY

OF STATE STATUTES

Check if demanded in complaint:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DOYOU CLAIM THIS CASE IS RELATED TOA ClV LCASENOW PENDING IN S.D.N.Y.?IF SO, STATE:

DEMAND $_ OTHER

Check YESonly if demanded in complaintJURY DEMAND: S YES • NO

JUDGE DOCKET NUMBER

NOTE: Please submit at the time of filing an explanation of why cases are deemed related

(PLACEAN x IN ONE BOX ONLY)

M 1 OriginalProceeding

ORIGIN

• 2 Removed from • 3 Remanded • 4 Reinstated or • 5 Transferred fromState Court from Reopened (Specify District)

I-! a. all parties represented Appellate'—' Court

I | b. At least oneparty is pro se.

(PLACE AN x INONEBOXONLY) BASIS OF JURISDICTION

• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT [X] 3 FEDERAL QUESTION D4 DIVERSITY(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)

PTF DEF

CITIZEN OF THIS STATE [ ] 1 [ ] 1

CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2

CITIZEN OR SUBJECT OF A

FOREIGN COUNTRY

INCORPORATED or PRINCIPAL PLACE

OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

Fox News Network, LLC1211 Avenue of the Americas

New York, NY 10036

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

TVEyes Inc.2150 Post Road

Fairfield, CT 06824

PTF DEF

[ ]3 [ ]3

[ ]4 [ ]4

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, ATTHIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE

RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Checkone: THIS ACTION SHOULD BE ASSIGNED TO: Q WHITE PLAINS(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT

• 6 MultidistrictLitigation

I I 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment

IF DIVERSITY, INDICATECITIZENSHIP BELOW.

(28 USC 1332, 1441)

INCORPORATED and PRINCIPAL PLACEOF BUSINESS* IN ANOTHER STATE

FOREIGN NATION

PTF DEF

[]5 []5

[]6 []6

DILIGENCE, TO ASCERTAIN THE

|>3 MANHATTAN

DATE 7/30/2013 SIGNATURE OEATTORNEY OF RECORDE OF_ATTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICT

[ ] NON YES(DATEAttorney Bar CodeRECEIPT*

AipiYIITTED Mo. May Yr. 1985 )DC2676

Magistrate Judge is to be designated by the Clerk of the Court. j^Q JIJDPF FF1FCMagistrate Judge is so Designated.

Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED

UNITEDSTATES DISTRICT COURT (NEW YORK SOUTHERN)

ORIGINAL

^fcHELLERSTBM

Dale M. Cendali

Joshua L. Simmons

KIRKLAND & ELLIS LLP

601 Lexington AvenueNew York, New York 10022Telephone: (212) 446-4800Facsimile: (212) 446-4900dale.cendali@kirkland.comjoshua.simmons@kirkland.com

Attorneysfor PlaintiffFox News Network, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

I O vV

Case No.FOX NEWS NETWORK, LLC,

Plaintiff,

- against -

TVEYES, INC.,

Defendant.

ECF Case

en

o

Zn-A<

C-\

CO

COMPLAINT

Plaintiff Fox News Network, LLC ("Fox News"), by and through its

& Ellis LLP, for its Complaint, hereby alleges against Defendant TVEyes,

follows:

NATURE OF THE ACTION

1. This action seeks to recover damages that Fox News has suffeWd

the irreparable harm that continues to threaten Fox News as a result of TVEy^

infringement of Fox News's valuable intellectual property rights in and to its

programming and content. Specifically, TVEyes copies Fox News's proprietWy programming

attorneys, Kirkland

Ink ("TVEyes") as

and to prevent

's willful

television

SE- ">• c~>

o 5

twenty-four hours a day as it is being telecast and makes the programming available for a

subscription fee to Internet users on its website, <http://www.tveyes.com>.

2. As the following image illustrates, TVEyes makes verbatim n

News's programming and the closed captioning associated therewith. After

willfully appropriating all of Fox News's content, TVEyes, without Fox Nevis

distributes, publicly performs and publicly displays that content on its own w

epreductions of Fox

lawfully and

s consent,

ebsite:

un

Media Monitoring Suite /^5T tveyesLog In > Transcript

Transcript

Fox News - U.S. Cable

The O'Reilly Factor

+ National Viewership:National PublicityValue $145,613.58

2,211,292

FNC 7/03/2013 8:01:13 PM: ...to enterthe no spin zone, the factor beginsright now. bill o'reilly, thanks for watchingus tonight, the fbi and the irs. that is thesubject of this evening's talkingpoints memo, a conservative groupcalled the american center for law and

justice says that the federal bureauof investigation has not even contacted,has not even contacted any of the41 groups involved in the class action suitagainst the irs. as you may know,the federal tax agency admits it targetedsome conservative organizations andindividuals, delaying tax exempt statusand auditing some people because of theirpolitical beliefs, that's a huge scandal,if true, and it is the fbi's job to see if

. ^tllf -

O'ReilK\CTOB.

\

3 >) S

Webpage from TVEyes's Media Monitoring Suite Website^

3. Upon information and belief, in a deliberate attempt to profit fit>m Fox News's

valuable intellectual property, TVEyes sells subscriptions to its Media Monitb|-

to users who can then view Fox News's programming on the TVEyes website

Service"). The Infringing Service directly competes with Fox News' telecastih

licensing services.

Log In

ing Suite service

(the "Infringing

g and clip

4. TVEyes is well aware that it mustobtain a license, consent or

Fox News in order to reproduce, distribute, publicly perform, publicly displ

use Fox News's programming and content in thismanner. In fact, TVEyes

seeking a license for its use of Fox News content. Fox News declined and

occasions that TVEyes cease its willful and infringing reproduction of Fox

TVEyes has refused to comply and even to respond to FoxNews's most

information and belief, continues infringing Fox News's copyrights.

5. In sum, TVEyes has engaged, and continues to engage, in a

of knowingly, intentionally and willfully infringing FoxNews's copyrights,

builda business by stealing FoxNews's programming and content, and

distributing, publicly performing and publicly displaying purloined copies

Moreover, despite FoxNews's repeated requests that TVEyes cease its infrir

TVEyes hascontinued to misappropriate and profit from Fox News's copyri

6. Accordingly, due to TVEyes's blatant and willful infringi

cease and desist, Fox News has no choice but to file this lawsuit seeking inj

damages that it has suffered as a result of TVEyes's direct and contributory

infringement under the Copyright Actof 1976, 17 U.S.C. § 101 etseq., and

misappropriation.

PARTIES

7. Plaintiff Fox News is a limited liability company having its pfi

authorization from

and/or otherwiseav

contacted Fox News

demanded on multiple

s's content,

recent letter. Upon

Ne|v

padern and practice

is attempting toIt

reproducing,

off that content,

ing activities,

Jited content,

and refusal to

relief and

jement

injunctive

copyright

stkte law

business in the State ofNew York and is qualified to do business and is doin

State of New York and in this judicial district. Fox News is, and at all times

owner of Fox News Channel and Fox Business Network and engaged in the

otherthings, of creating, producing, distributing and marketing television programs.

-3-

hcipal place of

g business in the

rjiaterial herein was,

business, among

8. Defendant TVEyes is a corporation organized and existing under the laws of the

State of Delaware and having offices in Fairfield, Connecticut and, upon information and belief,

New York, New York. TVEyes owns and operates the website available at

<http:www.tveyes.com>.

JURISDICTION AND VENUE

9. This action arises under the Copyright Act of 1976, 17 U.S.C

New York state law. This Court has jurisdiction pursuant to 28 U.S.C. §§ 133

10. Venue is proper in this Districtunder28 U.S.C. §§ 1391 and

ALLEGATIONS COMMON TO ALL CLAIMS FOR RELt

I. Fox News and Its Award-Winning Programming

11. Fox News is one of the world's preeminent news organization sP It is engaged in

the business of creating and producing original television programming and content, gathering

news and information, and telecasting, publicly performing, publiclydisplaying, licensing and

otherwise distributing its copyrighted programming and content. FoxNewso|vnsand operates

two national cable channels: FOX News Channel ("FNC") and FOX Business Network ("FBN"

(collectively, the "Fox News Networks").

12. FNC has been in operation since October 7, 1996. It is a24-1 dur all-

encompassing news service dedicated to delivering breaking news as well as political and

business news. A top five cable network, FNC hasbeen the most watched nev/s channel in the

country for more than ten years and, according to Public Policy Polling, is the most trusted

television news source in the country. FNC is available in more than 90 mill i4)n homes and

dominates the cablenews landscape, routinely notching the top ten programs jn the genre.

13. FBN has been in operation since October 2007. It is a financ ia[l news channel

delivering across all platforms real-time information that impacts both Main

-4-

§ 101 et seq., and

1, 1338 and 1367.

400.

IEF

Street and Wall

Street. Headquartered in New York City—the financial capital of the world

business network to telecast in full-screen 720p high definition throughout tht

FBN is distributed to more than 60 million subscribers.

FBN is the only

programming day.

14. Among the copyrighted content created and distributed by Fox News is its award

winning programming, such as The O 'ReillyFactor, Hannity, On the Record

Susteren, The Five and Special Report with Bret Baier.

15. The O'Reilly Factor, a news and talk show hosted byon air pe^onal

O'Reilly, has been the highest rated cable news show for more than ten consecutive

first aired on FNC in 1996. Since that time, it has won two BMI Cable Awariii

nominated for the TCA Award for Outstanding Achievement in News and Information

16. Hannity is a television show hosted by Sean Hannity, one of the

and influential conservative voices in the country. Since 2009, the program

news, commentary, interviews and branded segments, such as the Great AmeHpan

is made up of three nightly in-studio guests from across the political spectruni

Mfith Greta Van

lity Bill

years. It

and has been

most prominent

offered a mix ofhas

various issues.

Panel, which

Who discuss

17. On the Record with Greta VanSusteren is a prime-time news

program, which launched in February 2002. Ms. Susteren has conducted

interviews, including, butnot limited to, interviews of former Presidents Geoj-:

Bill Clinton and George W. Bush. On the Record is the highest rated cable

10:00-11:00 p.m. timeslot.

18. The Five is a talk show featuring varying personalities and g

current political issues and pop culture. It features a rotating panel of hosts,

arid interview

uesjs

in

-5-

numerous high-profile

ge H. W. Bush,

n^vs program in the

that discuss

Eluding Andrea

Tantaros, Bob Beckel, Dana Perino, Eric Boiling, Greg Gutfield, Juan Willai

Guilfoyle.

19. SpecialReport with BretBaier is a news and political comme^ry

airs live on weekdays from 6:00- 7:00 p.m. ET. During its time slot, it is thi

program on cable. Anchored by Washington news veteran Bret Baier, Special,

in-depth analysis of news and political issues.

II. Distribution of Fox News's Programming

20. Fox News' programming and content are distributed via the

which telecast Fox News's content 24 hours a day, every day. From these te

derives revenue both from its cable company licensees and from its advertisiiji

companies pay Fox News a royalty based on subscriber fees for access to

content. Advertisers pay Fox News a fee to telecast advertisements during

Fox News's programming. Both sources of revenue are determined, in part,

viewership of the Fox News Networks.

21. In addition to these telecasts, Fox News offers select video cl

programming and content via its own websites, including <http://www.foxne)w

<http://www.foxbusiness.com>; through licensed websites, such as Hulu

<http://www.hulu.com>and YouTube <http://www.youtube.com>; and via

archival footage library, which is available at <http://www.itnsource.com>.

News's content is available on the Internet; much of its content remains excl

News Networks.

22. Fox News receives revenues from each authorized website

clips on Fox News's own websites, Fox News is paid by advertisers to embed

mis and Kimberly

program that

jiumber one news

Report provides

Fox News Networks,

epasts, FoxNews

g partners. Cable

News's valuableFox

cortimercial breaks in

b^sed on the

IPS of its

s.com> and

the ITN Source

Ntot all of Fox

usive to the Fox

With regard to video

advertising such

that viewers will see the advertising before reaching Fox News's content. The inclusion of Fox

News's programming on Hulu and YouTube provides similar revenues.

23. ITN Source, on behalf of Fox News, licenses past Fox News cbhtent through its

online library of video clips. ITN Source's library includes over fifty thousand^ FoxNews clips

selected from the full range of Fox News programming and content. Furthermore, ITN Source

offers to seek licenses from Fox News for clips not already offered in the onlinje catalog. Fox

News derives revenue from all licenses sold by ITN Source.

III. Fox News's Valuable Intellectual Property Rights in its Programing

24. FoxNews has invested vast resources, including time, effort, talent, creativity and

money, to produce its programming. Its programming has a large following of fans throughout

the world making the FoxNews Networks two of the most popularchannels in| television today.

Fox produces up-to-the-minute news reporting on the timely matters that most interest

consumers. In addition to high-quality news reporting, Fox News produces creative and

expressive programming—including myriad videos, sounds and images—that Ss original to Fox

News and constitutes copyrightable subject matter under the laws of the United States.

25. Each Fox News episode is separately written, produced and directed and

constitutes a separate copyrighted work asa television motion picture. Fox Nejws also holds the

copyrights for each episode's closed captioning.

26. While registering each episode produced on Fox News's two 24-hour cable

networks would be unduly burdensome, Fox News has registered with the United States

Copyright Office a representative sample of its most recent programming as television motion

pictures (the "Works"). Included among the Works are the following episodes:

• Hannity- Episode of July 3, 2013, 9:00 p.m.In this episode, Hannity airs his exclusive interview with GeorgeZimmerman and attorney Mark O'Mara. They discuss what happened on

-7-

the night of the shooting of Trayvon Martin, straightenrumors that Hannity offered to pay for Zimmerman'sallow Zimmerman to deliver a message to the Martinpublic.

The O 'Reilly Factor - Episode of July 3. 2013. 8:00 p,

put the record over

legal defense, andfafriily and the

m.

In this episode, O'Reilly comments on the FBI's failinvestigate the IRS, discusses the removal of anti-terro^from the far left, covers the latest on the murder trial o

Zimmerman, and reports on the coup in Egypt.

urs to aggressivelyads under pressureGeorge

Fox Report with Shepard Smith - Episode of July 3, 201 3. 7:00 p.m.

In this episode, Shepard Smith reports on the murder trjiZimmerman, the military coup in Egypt, and the 150thBattle of Gettysburg.

i$l of Georgeanniversary of the

The O'Reilly Factor -Episode of July 2, 2013. 8:00 p.

cffGeorgebijiblic's opinion ofDpen's shattered

riz^ona wildfire.

In this episode, O'Reilly comments on the murder trialZimmerman, analyzes with Charles Krauthammer thethe Supreme Court, discusses with John Stossel Paulacareer, and reports on the death of firefighters in an A

Special Report with BretBaier- Episode of July 2. 20 lft, 6:00 p.mIn this episode. Shannon Bream fills in for Bret Baierunrest in Egypt, the NSA leaks and Edward Snowden.George Zimmerman, the implementation of the Affordablegovernment sequestration, waste in the social securityspill, and the 150th anniversary of the Battle of Gettys

The Five - Episode of July 2, 2013. 5:00 p.m.This episode features Andrea Tantaros, Bob Beckel, EricPerino, and Greg Gutfeld discussing Islamic extremismthe publicity push for the Affordable Care Act, the NSASnowden, a British survey about pretending to be moreto impress others, and a 19-year-old jailed over a threatFacebook. Greta Van Susteren guests to discuss the mZimmerman.

Hannity - Episode of June 28, 2013, 9:00 p.m.In this episode, Hannity covers recent developments inGeorge Zimmerman, airs highlights of a previously recwith George Zimmerman, and comments on allegationsthe shooting of Trayvon Martin.

£rid reports onthe murder trial of

Care Act.

system, the BP oilbijirg.

Boiling, Danaunrest in Egypt,leaks and Edward

Clever or cultured(nade on

rider trial of George

the murder trial ofdrded interview

that racism caused

Special Report with Bret Baier - Episode of June 28, 2013, 6:00 p.m.In this episode, Bret Baier reports on congressional investmisconduct, the NSA leaks and Edward Snowden, President

-8-

igations into IRSObama's trip

to Africa, the murder trial of George Zimmerman, theAaron Hernandez, gun legislation, and the U.S. miliAfghanistan.

aijrest of NFL-starpresence intary

The Five - Episode of June 28. 2013. 5:00 p.m.

This episode features Kimberly Guilfoyle, Bob BeckelPerino, and Greg Gutfeld discussing the murder trialZimmerman, the arrest of NFL-star Aaron Hernandez,Edward Snowden, Alec Baldwin's salacious tweets,

Facebook questions from fans, workplace drinking,court's ruling that tip jars at Starbucks must be shared

, Eric Boiling, Danaof George

the NSA leaks andresponses to

andiaNew York

with supervisors.

On the Record with Greta Van Susteren - Episode of June 26, 2013,10:00 p.m.

This episode covers the ongoing congressional investimurder charges against NFL-star Aaron Hernandez, theGeorge Zimmerman, a home invasion caught on cameraand the landmark Supreme Court decisions on DOMA

ations into the IRS,

murder trial of

in New Jersey.and Proposition 8.

Fox Reportwith ShepardSmith - Episode of November 2, 2012, 7:00 p.min part of New

and the final jobsIn this episode, Shepard Smith reports on gas rationingJersey, the cancellation of the New York City marathonreport before Americans head to the polls.

The Five - Episode ofNovember 2. 2012. 5:00 p.m.

This episode features Andrea Tantaros, Bob Beckel,Perino, and Greg Gutfeld discussing the devastationand the current state of the presidential race.

Ejrjc Boiling, Danafrpjri Hurricane Sandy

On the Record with Greta Van Susteren - Episode of October 31,2012,10:00 p.m.

Thisepisode focuses on the current stateof the presidentialnew poll out six days before the election shows that theeven.

Hannity - Episode of October 31. 2012. 9:00 p.m.

In this episode, Hannity discusses looting, gas shortagand food shortages causing chaos throughout the Northcomments on President Obama's response to Hurricarjehow the President is abandoning bipartisanship to miRomney's record and stance on the issues in the lastelection.

ial race, where acontest is dead

eS, power outages,East. HannitySandy and shows

sHpresent Governorwdek before the

The O'ReillyFactor- Episode October 31. 2012. 8:00 p.mIn this episode, O'Reilly comments on the dangerouselements of the Democratic Party threatening violencelooses reelection and on Al Gore and the far left blam

and extreme

if BarackObama

ing Hurricane Sandy

on global warming as an election ploy. Guests on this episode includeDenis Miller, Karl Rover, and Dick Morris.

Special Report with BretBaier- Episode of October 29^ 2012, 6:00 p.mIn this episode, Bret Baier reports on the historic Hurricanedown on the Atlantic Coast and on the havocthe monsp^rwreak on the presidential campaigns.

Hannity - Episode ofOctober 22, 2012, 11:05 p.m.This special edition episode of Hannity was broadcastroom following a Presidential debate. Hannity presentstwo very different candidates that took the stage and afrenetic - and at times desperate. Hannity discusses thetMarco, Governor Sarah Palin, and John Sununu.

Sandy bearingstorm may

iye from the spinhis views of the

debate that was

debate with Rubio

Special Report Investigates: Death & Deceit in Benghazi - Episode ofOctober 19. 2012. 10:00 p.m.

In this special broadcast, Bret Baier reports on the terroristBenghazi that resulted in the death of four Americanson the anniversary of 9/11. Baier's reporting team triesimportant questions: Who did this, and how? Shouldseen it coming? Did President Obama try to hide thescandal that exposes a failed Obama foreign policy, orsaying it is?

attack in

the U.S. consulate

to answer the

government havefji? Is this a huge

is Mitt Romneyjust

at!

our

: tiu

The O'Reilly Factor -Episode October 16. 2012. 8:00

In thisepisode, broadcast just before the presidential debateUniversity, O'Reilly comments on the current state of thelatest polling and with analysis from Charles Krauthammer,and Scott Rasmussen. Additionally, supported with investiColonel David Hunt, O'Reilly addresses the growing Lireports that the State Department heard the terror attack

PJ1L

at Hofstra

election with the

Larry Sabato,igation by

ibya scandal andive.

Attached hereto as Exhibit A, and incorporated herein by reference, are true and correct copies

of the Certificates of Registration issued by the Copyright Office for the Works. The attached

certificates reflect the date upon which Fox News applied for a Certificate of

date on which the certificate was issued and the registration number assigned

27. The Works—which feature unique commentary and reporting

employees, various graphics and images, the selection of distinctive and stylized

and the closed captioning associated with each episode—are creativeexpression

- 10-

Registration, the

by Fox News

camera angles,

of news events

that were the product of editorial discretion and substantial journalistic skills,

creative energies.

28. The Works also are of great value to Fox News and are watc

millions of viewers. In fact, on multiple occasions, the viewerships forepisode

The O 'Reilly Factor have been between four and six million.

29. Fox News is, and at all times material herein was, the sole owner

ofall right, title and interest in and to the copyrights in the Works. The copy^i

are presently valid and subsisting and were valid and subsisting at all times affectin

complained of herein.

IV. TVEyes

30. TVEyes is engaged in the parasitic business of offering and prbvidin

public for a fee copies of television programming and content created by othejrs

website, TVEyes delivers "real-time TV and radio content on an internationa

fee." Upon information and belief, while TVEyes originally followed an

based business model, today, TVEyes charges a subscription fee of $500 per

the use of the Infringing Service. The Infringing Service is not publicly avai

31. Asa "media monitoring company," TVEyes records broadcasl

television and radio content twenty-four hours each day from various media

in the United States, "all 210 DMAs [Designated Market Areas] and more

including all major network affiliates and network cable television stations.'

broadcasts and cable television and radio content made by TVEyes and offered

users, are saved, stored or maintained on servers or other computer equipment

by, maintained on behalf of, or otherwise under the direction or control of, TVEyes

resources, and

:hed

than

weekly by

s of Hannity and

and proprietor

ghts in the Works

g the matters

iding to the

According to its

platform for a flat

advertising revenue-

month per user for

liable.

and cable

ljiarkets including,

1,600 stations

The copies of

by TVEyes to its

owned or leased

32. TVEyes makes all of the infringingcontent it records available

listening by its users without any commentary or analysis. When a userselects

Infringing Service's videos, TVEyes distributes, publicly performs and publ

content by streaming the video content anddisplaying the closed captioning

servers to the user's computer.

33. Videos are available contemporaneously with their original

through the Infringing Service's archive of media clips and transcripts. As

Infringing Service's UserGuide, TVEyes provides its userswith "a real time

what is being broadcast across each channel in the TVEYES footprint." Onc^

station, TVEyes distributes, publicly performs and publicly displaysa "real

video for the selected station."

34. The Infringing Service contains a search function that permits

search for keywords, phrases and topics found in, upon information and

captioning associated with the broadcast and cable television and radio content

TVEyes. Unlike Internet search engines, such as Google Web Search and B

not index and enable searches of content published and available on the

TVEyes's search function only searches within TVEyes's own archive ofunk

broadcast, cable and radio content that TVEyes illicitly copied. Thus, TVEyes

easier for Internet users to find content residing on other websites. Rather, it

easier for TVEyes to publicly perform, publicly display and distribute TVEyps

reproductions of others' content.

35. As the screenshot below illustrates, users of the Infringing

locate programming and content by date range, specific stations and markets

lie

for viewing or

one of the

ly displays the

ijrpm TVEyes's

broadcasts, aswell as

described in the

visual snapshot of

a user selects a

time transcript and

TVEyes's users to

; the closed

copied by

g, TVEyes does

. Instead,

ijthorized copies of

does not make it

simply makes it

's unauthorized

belief;

ini

Internet

Service also are able to

12

Media Monitoring Suite

Dat«/T<me Search

Date Tim* M*rfc«t Station

US Catiie0

ABCtl-"*r. **• +

Abil»f>e, 1* Ahtc

Albany- CA BLOOM

lAIMnv *v BRAVO

.Afbuquerqu«, NM t-artcD'i «*tt**jrtt

.Meimdm i \ < HV Srwirf' Nplw^irk

Aiperu, Ml trrtL

'Arruiilfc. TX rf«r w^"i

Infringing Service's Date/Time Search

Thus, the Infringing Service permits users to view programming and content jiays or months

after it was originally broadcast.

36. Users of the Infringing Service alsocandownload an unlimited

of the content that TVEyes illicitly reproduces. Moreover, the Infringing SerVice

editor that allows users to create derivative works based upon TVEyes's infrijig

V. TVEyes's Infringement of and Commercial Exploitation ofFox News's Copyrighted Programming

37. TVEyes has taken upon itself, without any license or authorization from Fox

News, to misappropriate the entirety of the Works that Fox News has developed

and to reproduce, to distribute, to publicly perform and/or to publicly display

the Works. TVEyes copies Fox News's programming twenty-four hours eac^i

programming is being telecast by Fox News or its licensees. As the side-by

below illustrate, TVEyes then makes the programming, including, but not limited to, the Works,

available to Internet users around the world through the Infringing Service

13

number of copies

ice includes a clip

ing content.

side

at great expense

verbatim copies of

day as that

screenshots

Authorized Clip of the July 2,2013 Episode ofThe O'Reilly Factor on Hulu.com

Hannitu Weeknighi

Zimmerman trial: Is the prosecution still in the game?

/^ tV€LJGS

2,2013 Episode ofon TVEyes

Infringing Copy of the JulyThe O'Reilly Factor

/^S)^ tveyes

!!) *•) •)

Authorized Clip of the June 28, 2013 Episode of Infringing Copy of the JuneHannity on FoxNews.com Hannity on

28, 2013 Episode ofTVEyes

14

/"5^ tveyes

Authorized Clip of the June 26, 2013 Episodeof On the Record on FoxNews.com

Infringing Copy of the JuneOn the Record or

26,2013 Episode ofTVEyes

38. In so doing, TVEyes infringes Fox News's valuable and

expression and violates Fox News's right to the exclusive use of its creative

contraventions of its copyrights in the Works. TVEyes also free rides on the

Fox News has invested in producing its premium, up-to-the-minute news

39. By virtue of its infringing activities, TVEyes has developed a

information and belief, produces millions of dollars in revenue each year.

40. Moreover, TVEyes directly competes with Fox News's own

its works. First, users of the Infringing Service are able to substitute their vi

News Networks by watching TVEyes's contemporaneous reproductions of

Second, the Infringing Service serves as a substitute for users watching Fox

on Fox News's own websites and the websites of its licensees. Third, when

download and use video clips from past telecasts on specific content, the

substitutes for ITN Source, Fox News's licensed clip library.

15

propr; etary creative

prpducts in

expense and effort

reporting.

business that, upon

attempts to monetize

vieyvership of the Fox

¥i)X News's telecasts.

News programming

lisers wish to search,

Infringing Service

VI. TVEyes Refuses to Cease Infringing Fox News's Copyrights andAppropriating Fox News's Works

41. TVEyes knows that it must obtain a license or other authorizatjipn

in order to use the Works in the manner described above. TVEyes's Director

Robert Bruder, contacted Fox News seeking to form a partnership. Mr. Bruder

News that TVEyes had been using Fox News's content without authorization

now sought a license from Fox News in exchange for which it would compensate

response, Fox News demanded that TVEyes cease its use of Fox News's

however, refused to take down the infringing content.

42. Fox News again contacted TVEyes and demanded that its

immediately. TVEyes again refused to take down the infringing content.

43. Due to TVEyes's repeated refusals, Fox News, through its outride

TVEyes on April 16, 2013 the letter attached as Exhibit B. In the letter, Fox

forth in detail, citing recent and controlling case law, why the Infringing Service

News's content constituted copyright infringement. The letter also demanded

any further use or distribution of Fox News's content. Fox News's counsel

in a subsequent e-mail exchange with TVEyes Founder and CEO, David Ives

44. TVEyes never responded substantively to the letter.

45. Despite Fox News's repeated efforts to resolve this dispute w

intervention, TVEyes has not removed Fox News's content from the Infringi

upon information and belief, continues to use Fox News's content in the manner

above.

46. Moreover, upon information and belief, TVEyes recently has

Fox News's content by, among other things, creating a mobile phone application

- 16-

from Fox News

of Client Relations,

notified Fox

and that TVEyes

Fox News. In

content. TVEyes,

content be taken down

counsel, sent

News's counsel set

s use of Fox

that TVEyes cease

reiterated its demand

ii:ho ut court

g Service and,

described

Expanded its use of

for the

nn

Infringing Service and increasing its international presence, bothof which are designed to build

TVEyes's user base. By doing so, TVEyes increasingly diverts users from Fox News's telecasts

and licensed clip services.

VII. The Harm to Fox News

47. As discussed above, Fox News produces cable television progt-

receives revenue from subscriber fees, advertising in telecasts, advertising embedded in content

made available on the Internet, and clip licensing.

48. TVEyes's willful infringement robs Fox News of these revemies. Itsverbatim

reproduction of the Works, without consent, (1) allows TVEyes to profit commercially without

paying the traditional price, and (2) devalues andcauses substantial harm to the value of the

Works. Thus, Fox News has been damaged by TVEyes's conduct in an amojint to be determined

according to proof.

49. Moreover, upon information and belief, TVEyes is aware that

theexpense of content producers like Fox News. Nevertheless, TVEyes does not collect fees for

Fox News. Instead, it monetizes Fox News's content—which one TVEyes employee has

described as "clearly very significant"—and keeps the profits for itself, thus undermining Fox

News's investment in its content in order to create its award-winning programming. In so doing,

TVEyes also undermines the incentive for Fox News to continue to produce such high-quality

programming.

50. TVEyes's acts of reproduction, public performance and publ

Worksare just a sample of the massive ongoing pattern and practice of infrin

by TVEyes. All day, each and every day, TVEyes continues to create

Fox News's programming and content as it is aired by Fox News.

17-

rams for which it

its profits come at

iC display of the

gement undertaken

unauthorized copies of

51. Upon information and belief, unless enjoined by this Court, TyEyes

continue to infringe upon Fox News's copyrights and otherwise to profit fronj

works.

intends to

Fox News's

52. Accordingly, Fox News has suffered irreparable damages. Fok News has no

adequate remedy at law to redress all of the injuries that TVEyes has caused ind intends to cause

by its conduct. FoxNews will continue to suffer irreparable damage until T\(Eyes's actions

alleged above are enjoined by this Court.

CLAIMS FOR RELIEF

COUNT I

Copyright Infringement (17 U.S.C. § 101 et seq.)

53. Fox News repeats and realleges each and every allegation abo^e as if fully set

forth herein.

54. The Works are original, creative works and copyrightable subject matter under the

laws of the United States.

55. Fox News is the owner of valid copyrights in the Works, and

Copyrights has issued valid Certificates of Registration as indicated in Exhibit

56. Fox News has complied in all respects with 17 U.S.C. §§ 101,

secured the exclusive rights and privileges in and to the copyrights in its televi

and content.

57. By its actions, alleged above, TVEyes has infringed and will

Fox News's copyrights in and relating to Fox News's programming and content i

reproducing, distributing, publicly performing and publiclydisplaying the Wi>rks

authorization or other permission from Fox News.

- 18-

the Register of

A.

et seq., and has

iSion programming

continue to infringe

by, inter alia,

without any

19

58. TVEyes's infringement of Fox News's copyrights has been deliberate, willful and

in utter disregard of Fox News's rights.

59. Upon information and belief, as a direct and proximate result

conduct, TVEyes has obtained benefits, including, but not limited to, investments

company to which TVEyes is not entitled.

60. As a direct and proximate result ofTVEyes's wrongful conduct

been substantially and irreparably harmed in an amount not readily capable of

Unless restrained by this Court, TVEyes will cause further irreparable injury

61. Fox News is entitled to injunctive relief enjoining TVEyes, its

employees, and all persons acting in concert or participation with it, from end,

infringement of Fox News's copyrighted programming and content.

62. Fox News is further entitled to recover from TVEyes the dama^

attorneys' fees and costs, it has sustained and will sustain, and any gains, profits

obtained by TVEyes as a result of its acts of infringement as alleged above,

amount of such damages, gains, profits and advantages cannot be fully ascertained

but will be established according to proof at trial. Fox News also is entitled

damages for TVEyes's willful infringement of its copyrights.

COUNT II

State Law Misappropriation (Hot News)

63. Fox News repeats and realleges each and every allegation abo^e as if fully set

forth herein.

64. Fox News incurs substantial expense producing and distributing tocustomers its

premium daily and weekly up-to-the-minute news programming and commentary.

of its wrongful

in the

, Fox News has

determination,

to Fox News.

agents and

aging in any further

ges, including

and advantages

present, the

by Fox News,

recover statutory

At

to

65. The value of much of Fox News's product is extremely time

offers Fox News content to consumers before Fox News has had a chance to

content to its consumers through authorized services.

66. TVEyes's use of the content that Fox News creates constitutes

News's significant investment in preparing, producing, and distributing

on the specific news matters that interest customers.

67. TVEyes's subscription services directly compete with Fox

partners' services by distributing Fox News's valuable content to the same

News and its licensed partners target. TVEyes infringing services convey the

TVEyes is a legitimate distributor of Fox News content, intentionally misleaqin

believe that there is a connection or association between Fox News and TVEVe

sensitive. TVEyes

'ully distribute its

none.

68. If TVEyes is allowed to continue its willful free-riding on Fox

programming, it will substantially reduce Fox News's incentive and ability to

content, jeopardizing both the quality and the quantity of premium news repoftin

consumers.

69. TVEyes's actions constitute "hot news" misappropriation und^rNew York

common law. TVEyes has acted willfully, in bad faith, and without regard

70. Fox News has suffered and will continue to suffer immediate,

irreparable harm to its business and reputation. Fox News has no remedy at

adequately address all of the past andcontinuing harm it has and will suffer a^s a result of

TVEyes's past and continuing conduct.

free-riding on Fox

premium news reporting

News and its licensed

consumers that Fox

appearance that

g consumers to

s where there is

News's

produce new

ing available to

for Fox News's rights,

severe, and

that willlaw

20

COUNT HI

State Law Misappropriation (Direct Competition)

71. Fox News repeats and realleges each and every allegation

forth herein.

72. As detailed above, Fox News expends considerable time and

producing and distributing its premium programming and content. Fox News

reputation have significant monetary value to Fox News.

73. TVEyes uses Fox News's work in competition with it, includiA

to, by providing an archival clip service in competition with Fox News's li

Source. TVEyes's service also allows customers to watch Fox programming

competition with Fox News's cable partners, Fox News's own websites, and

TVEyes's contemporaneous distribution of Fox News's content directly

News cable telecasts.

74. TVEyes has willfully misappropriated Fox News's property ri

programming and content. By intentionally misappropriating Fox News

off to consumers through its unauthorized sales and services, TVEyes inten

public to believe that there is a connection or association between Fox News

there is none.

75. As a result, TVEyes gains a special advantage over Fox News

bears none of the expense of producing news programming and content on

interest viewers. Upon information and belief, TVEyes has made, and

substantial profits as a direct result of its appropriation of Fox News content.

76. As a result of TVEyes's misappropriation, Fox News has

commercial and monetary damages as well as injury to its reputation.

-21 -

above as if fully set

expense in

S content and its

g, but not limited

icensing partner, ITN

online in

its website partners,

competes with Fox

j?hts in its

content and palming it

tidnally misleads the

and TVEyes where

because TVEyes

news matters thatthe

continues to make,

suffered significant

77. Fox News has no remedy at law that will adequately address a

continuing harm it hasand will suffer as a result of TVEyes's pastand conti

direct and proximate result of TVEyes'sconduct, FoxNews has suffered and

sufferdamages in an amount presently unknown and to be ascertained at time

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Fox News respectfully requests judgment ag

TVEyes as follows:

A. Find that TVEyes has infringed Fox News's copyrights in the

Find a substantial likelihood that TVEyes will continue to infrfn

intellectual property unless enjoined from doing so;

Issue a preliminary and permanent injunction enjoining TVEy^

servants, employees, attorneys, successors and assigns, and al

corporations acting in concert with it, from directly or indirectly

News's copyrights, including, but not limited to, reproducing,

publicly performing or publicly displaying any of Fox News's

content in connection with any service offered by TVEyes,

further acts of misappropriation, and from participating or

activity;

D. Order TVEyes to render a full and complete accounting to Fok News for

TVEyes's profits, gains, advantages or the value of the business opportunities

received from the foregoing acts of infringement;

E. Enterjudgment for Fox News against TVEyes for all damage

News and for any profits or gain by TVEyes attributable to in

News's intellectual property in amounts to be determined at

-22-

1of the past and

g conduct. As anuin

B.

C.

will continue to

pf trial.

;ainst Defendant

Works;

ge Fox News's

s, and its agents,

persons, firms and

infringing Fox

distributing,

programming or

engaging in

assisting in any such

from

jes suffered by Fox

fringement of Fox

trial;

H.

J.

Enter judgment for Fox News against TVEyes for statutory damages based upon

TVEyes's willful acts of infringement pursuant to the Copyright Act, 17 U.S.C. §

101 et seq.;

Enter judgment for Fox News against TVEyes for punitive darjiages in amounts to

be determined at trial;

Award FoxNews costs and disbursement of this action, including reasonable

attorneys' fees and costs pursuant to 17 U.S.C. § 505;

Award Fox News pre-judgment and post-judgment interest, to

available, on the foregoing; and

the fullest extent

Grant such other, further and different relief as the Court deem

DEMAND FOR JURY TRIAL

Plaintiff Fox News demands a trial by jury on all issues so triable in this action

KIRKLAND & ELLIS LLP

s just and proper.

Dated: New York, New YorkJuly 30, 2013

//iL£L Gz^JwdLDale M. Cendali

Joshua L. Simmons

601 Lexington AvenueNew York, New York 1002J2Telephone: (212) 446-4800Facsimile: (212) 446-4900dale.cendali@kirkland.comjoshua.simmons@kirkland.com

Attorneys for PlaintiffFox News Network, LLC

23

Fox News Network, LLC v. TVEyes Inc., Docket No. 1:13-cv-05315 (S.D.N.Y. Jul 30, 2013), Court Docket

© Bloomberg Finance L.P. All rights reserved. Terms of Servicehttp://www.bloomberglaw.com/ms/document/X1Q6MP1E1VO2?documentName=9000003.pdf&amp;fmt=pdf //

PAGE 1

General Information

Case Name Fox News Network, LLC v. TVEyes Inc.

Docket Number 1:13-cv-05315

Court United States District Court for the Southern District of NewYork

Nature of Suit Property Rights: Copyright