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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT Docket Number(s): 12-2786, 12-2807 Motion for: Caption [use short title]

leave to file a brief of amici curiae.

WNET, et al. v. Aereo Inc., f/k/a Bamboom Labs, Inc. American Broadcasting Companies, Inc. et al. v. Aereo, Inc.

Set forth below precise, complete statement of relief sought:

Leave of Court to file the attached brief of amici curiae in support of petition for rehearing en banc.

MOVING PARTY: Paramount Pictures Corporation, et al. 9 Plaintiff 9 Defendant 9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY: Kelly M. Klaus

OPPOSING PARTY:

Aereo, Inc.

Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 (213-683-9238
Court-Judge/Agency appealed from: Please check appropriate boxes:

OPPOSING ATTORNEY: R. David Hosp [name of attorney, with firm, address, phone number and e-mail]

Fish & Richardson One Marina Park Drive Boston, Massachusetts 02210-1878 (617) 368-2125 Southern District of New York (Judge Nathan)
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: 9 Yes 9 No Has request for relief been made below? Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency:

Has movant notified opposing counsel (required by Local Rule 27.1): X 9 Yes 9 No (explain): Opposing counsels position on motion: 9 Unopposed X 9 Opposed 9 Dont Know Does opposing counsel intend to file a response: 9 Yes X 9 No 9 Dont Know Is oral argument on motion requested? Has argument date of appeal been set?

9 Yes

X No (requests for oral argument will not necessarily be granted) 9

X No If yes, enter date:__________________________________________________________ 9 Yes 9

9 CM/ECF Service by: X 9 Other [Attach proof of service]

Signature of Moving Attorney: 04/16/2013 s/ Kelly M. Klaus ___________________________________ Date: ___________________

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE OHAGAN WOLFE, Clerk of Court Date: _____________________________________________ By: ________________________________________________

Form T-1080 (rev. 7-12)

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

WNET, et. al, Plaintiffs-Appellants, v. AEREO INC., f/k/a BAMBOOM LABS, INC., Defendant-Appellee. No. 12-2786

AMERICAN BROADCASTING COMPANIES, INC., et al., Plaintiffs-Counter-Defendants-Appellants, v. AEREO, INC., Defendant-Counter-Claimant-Appellee. No. 12-2807

MEMORANDUM IN SUPPORT OF MOTION OF PARAMOUNT PICTURES CORPORATION, WARNER BROS. ENTERTAINMENT INC., DIRECTORS GUILD OF AMERICA, INC., ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND CANADA, AFL-CIO, CLC, SCREEN ACTORS GUILD-AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, WRITERS GUILD OF AMERICA, WEST, INC., INDEPENDENT FILM & TELEVISION ALLIANCE, AND METRO-GOLDWYN-MAYER STUDIOS INC. AS AMICI CURIAE SUPPORTING PETITION FOR REHEARING EN BANC

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Amici Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc., Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists And Allied Crafts of the United States, Its Territories and Canada, AFL-CIO, CLC, Screen Actors Guild-American Federation of Television and Radio Artists, Writers Guild of America, West, Inc., Independent Film & Television Alliance, and MetroGoldwyn-Mayer Studios Inc. respectfully move the Court for leave to file a brief of amici curiae supporting Appellants petitions for rehearing en banc. A copy of the proposed brief is attached as Ex. 1 to the accompanying Affidavit of Kelly M. Klaus (Klaus Affidavit). Appellants in Nos. 122786 and 12-2807 have consented to this filing. Klaus Affidavit 3. Appellee in both cases, Aereo, Inc., does not consent to the filing of the brief but has indicated it does not intend to file an opposition. Id. 4. Amici and their members have a significant interest in the important questions that this case presents concerning the interpretation of the public performance right under Copyright Act, 17 U.S.C. 101 et seq. Amici consist of individuals and production and distribution companies that collectively comprise the entire chain for the creation of film and television content. Amicis members depend upon effective copyright protection in order to protect the motion picture and television content that they invest in,
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create and distribute. The public performance right is among the most critical rights secured by copyright to the owners of audio-visual content. The right is especially important, and will only become more important, as movies and television shows increasingly are disseminated and viewed through internet streams to the public. Amici seek to file the attached brief because of their concerns with the Panel Majoritys decision. Amici believe that their views regarding the important legal and policy issues that this case presents may be helpful to the full Court in deciding whether to rehear this case en banc. DATED: April 16, 2013 MUNGER, TOLLES & OLSON LLP

By: /s/ Kelly M. Klaus KELLY M. KLAUS Counsel for Amici Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc. and MetroGoldwyn-Mayer Studios Inc.

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AFFIDAVIT OF KELLY M. KLAUS Kelly M. Klaus declares and states, under penalty of perjury under the laws of the United States, 28 U.S.C. 1746, as follows: 1. I am a partner in the law firm of Munger, Tolles & Olson LLP,

counsel to amici curiae Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc. and Metro-GoldwynMayer Studios Inc. on the proposed brief of amici curiae. Counsel for the additional amici are listed on the cover page to the proposed brief. I was admitted to practice before the United States Court of Appeals for the Second Circuit on December 7, 2010. The facts stated in this affidavit are within my personal knowledge. 2. Attached as Exhibit 1 to this affidavit is the proposed Brief of

Amici Curiae Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc., Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists And Allied Crafts of the United States, Its Territories and Canada, AFL-CIO, CLC, Screen Actors Guild-American Federation of Television and Radio Artists, Writers Guild of America, West, Inc., Independent Film & Television Alliance, and MetroGoldwyn-Mayer Studios Inc. Supporting Petition for Rehearing En Banc.

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3.

On April 15, 2013, I contacted counsel for Appellants in Nos.

12-2786 and 12-2807, to inquire whether their clients would consent to amicis motion for leave. Counsel for the Appellants in each case told me they would consent to the motion. 4. Also on April 15, 2013, I made the same inquiry of counsel for

Aereo, Inc., which is Appellee in Nos. 12-2786 and 12-2807. Aereos counsel informed me that Aereo would not consent to the filing of the amicus brief but does not intend to file an opposition.

DATED: Los Angeles, California April 16, 2013

/s/ Kelly M. Klaus Kelly M. Klaus

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of April, 2013, a true and correct copy of the foregoing Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc., Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists And Allied Crafts of the United States, Its Territories and Canada, AFL-CIO, CLC, Screen Actors Guild-American Federation of Television and Radio Artists, Writers Guild of America, West, Inc., Independent Film & Television Alliance, and MetroGoldwyn-Mayer Studios Inc.s Motion for Leave to File Brief of Amici Curiae Supporting Petition for Rehearing En Banc; Memorandum in Support; and Affidavit of Kelly M. Klaus, including Exhibit 1, which is the proposed amici brief, was served on all counsel of record in this appeal via CM/ECF pursuant to Second Circuit Rule 25.1(h)(1)-(2). /s/ Kelly M. Klaus Kelly M. Klaus

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12-2786-cv
United States Court of Appeals
for the

Second Circuit
WNET, THIRTEEN, FOX TELEVISION STATIONS, INC., TWENTIETH CENTURY FOX FILM CORPORATION, WPIX, INC., UNIVISION TELEVISION GROUP, INC., THE UNIVISION NETWORK LIMITED PARTNERSHIP, and PUBLIC BROADCASTING SERVICE, Plaintiffs-Appellants, - v. AEREO INC., f/k/a BAMBOOM LABS, INC., ____________________________ Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF FOR PARAMOUNT PICTURES CORPORATION, WARNER BROS. ENTERTAINMENT INC., DIRECTORS GUILD OF AMERICA, INC., ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND CANADA, AFL-CIO, CLC, SCREEN ACTORS GUILDAMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, WRITERS GUILD OF AMERICA, WEST, INC., INDEPENDENT FILM & TELEVISION ALLIANCE AND METROGOLDWYN-MAYER STUDIOS INC. AS AMICI CURIAE SUPPORTING REHEARING EN BANC

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KELLY M. KLAUS MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071 (213) 683-9100 Counsel for Amici Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc. and Metro-Goldwyn-Mayer Studios Inc. SAMANTHA DULANEY I.A.T.S.E. IN HOUSE COUNSEL 1430 Broadway, 20th Floor New York, New York 10018 (212) 730-1770 Counsel for Amicus Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC DUNCAN W. CRABTREE-IRELAND CHIEF ADMINISTRATIVE OFFICER & GENERAL COUNSEL SAG-AFTRA 5757 Wilshire Boulevard, Suite 700 Los Angeles, California 90036 Counsel for Amicus Screen Actors Guild-American Federation of Television and Radio Artists ANTHONY R. SEGALL ROTHNER, SEGALL & GREENSTONE 510 South Marengo Avenue Pasadena, California 91101 (626) 796-7555 Counsel for Amicus Writers Guild of America, West, Inc. SUSAN CLEARY VICE PRESIDENT & GENERAL COUNSEL INDEPENDENT FILM & TELEVISION ALLIANCE 10850 Wilshire Boulevard Los Angeles, California 90024 (310) 446-1003 Counsel for Amicus Independent Film & Television Alliance

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12-2807-cv
United States Court of Appeals
for the

Second Circuit
AMERICAN BROADCASTING COMPANIES, INC., DISNEY ENTERPRISES, INC., CBS BROADCASTING INC., CBS STUDIOS INC., NBCUNIVERSAL MEDIA, LLC, NBC STUDIOS, LLC, UNIVERSAL NETWORK TELEVISION, LLC, TELEMUNDO NETWORK GROUP LLC and WNJU-TV BROADCASTING, LLC, Plaintiffs-Counter-Defendants-Appellants, - v. AEREO, INC., Defendant-Counter-Claimant-Appellee. ____________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF FOR PARAMOUNT PICTURES CORPORATION, WARNER BROS. ENTERTAINMENT INC., DIRECTORS GUILD OF AMERICA, INC., ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND CANADA, AFL-CIO, CLC, SCREEN ACTORS GUILDAMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, WRITERS GUILD OF AMERICA, WEST, INC., INDEPENDENT FILM & TELEVISION ALLIANCE AND METROGOLDWYN-MAYER STUDIOS INC. AS AMICI CURIAE SUPPORTING REHEARING EN BANC

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KELLY M. KLAUS MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071 (213) 683-9100 Counsel for Amici Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc. and Metro-Goldwyn-Mayer Studios Inc. SAMANTHA DULANEY I.A.T.S.E. IN HOUSE COUNSEL 1430 Broadway, 20th Floor New York, New York 10018 (212) 730-1770 Counsel for Amicus Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC DUNCAN W. CRABTREE-IRELAND CHIEF ADMINISTRATIVE OFFICER & GENERAL COUNSEL SAG-AFTRA 5757 Wilshire Boulevard, Suite 700 Los Angeles, California 90036 Counsel for Amicus Screen Actors Guild-American Federation of Television and Radio Artists ANTHONY R. SEGALL ROTHNER, SEGALL & GREENSTONE 510 South Marengo Avenue Pasadena, California 91101 (626) 796-7555 Counsel for Amicus Writers Guild of America, West, Inc. SUSAN CLEARY VICE PRESIDENT & GENERAL COUNSEL INDEPENDENT FILM & TELEVISION ALLIANCE 10850 Wilshire Boulevard Los Angeles, California 90024 (310) 446-1003 Counsel for Amicus Independent Film & Television Alliance

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate Procedure: Amicus Paramount Pictures Corporation certifies that it is a wholly owned subsidiary of Viacom Inc., a publicly held company. Amicus Warner Bros. Entertainment Inc. certifies that it is ultimately and indirectly wholly owned by Time Warner Inc., a publicly held company. Amicus Directors Guild of America, Inc. certifies that it is a California non-profit corporation doing business as a labor organization; it does not offer stock; and it has no parent corporation. Amicus Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC certifies that it is an unincorporated labor organization; it does not offer stock; and it has no parent corporation. Amicus Screen Actors Guild-American Federation of Television and Radio Artists certifies that it is a Delaware non-profit corporation; it does not offer stock; and it has no parent corporation. Amicus Writers Guild of America, West, Inc. certifies that it is a California non-profit corporation doing business as a labor organization; it does not offer stock; and it has no parent corporation.

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Amicus The Independent Film & Television Alliance certifies that it has no parent corporation and that no publicly held company owns 10% or more of its stock. Amicus Metro-Goldwyn-Mayer Studios Inc. certifies that it is a wholly owned subsidiary of Metro-Goldwyn-Mayer Inc., a privately held company.

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TABLE OF CONTENTS Page INTEREST OF AMICI CURIAE.................................................................. 1 ARGUMENT................................................................................................. 2 I. II. Cablevision Expressly Limited Its Public Performance Holding...................................................................................... 4 The Court Should Review En Banc the Majority Opinions Needless and Erroneous Expansion of Cablevisions Limited Decision................................................ 6

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TABLE OF AUTHORITIES Page FEDERAL CASES Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) ............................................................passim Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984)..................................................................................5 WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) .....................................................................3 FEDERAL STATUTES 17 U.S.C. 101..........................................................................................6, 7 OTHER AUTHORITIES U.S. Copyright Office, Satellite Home Viewer Extension and Reauthorization Act Section 109 Report (2008) ......................................3

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INTEREST OF AMICI CURIAE1 Amici consist of individuals and production and distribution companies that collectively comprise the entire chain for the creation of film and television content.2 Amici Guilds and Unions represent hundreds of thousands of men and women who write, direct, act in and provide below-the-line services for motion picture and television content. The members livelihoods depend on remuneration for the licensed exploitation of the content that they work to create. This includes residuals and royaltiesdeferred compensation based on the continuing use of the creative worksas works are released in different media. Residuals and royalties are an important source of income for creative artists and help determine their eligibility for benefits such as health insurance and pensions. Amici studios and distribution companies depend on compensation for the public performance of their works to underwrite the significant costs of creating and disseminating Pursuant to Federal Rule of Appellate Procedure 29(c)(5) and Second Circuit Rule 29.1(b), amici state that (i) no counsel for a party has written this brief in whole or in part and (ii) no person or entity other than the amici has made a monetary contribution that was intended to fund the preparation or submission of this brief. Amici submitted a brief at the Panel stage. Case No. 12-2786, Dkt. No. 147; Case No. 12-2807, Dkt. No. 121 (Amici Panel Br.). Amici studios and distribution companies are Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Independent Film & Television Alliance, Independent Film & Television Alliance, and Metro-Goldwyn-Mayer Studios Inc. Amici Guilds and Unions are Directors Guild of America, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC, Screen Actors Guild-American Federation of Television and Radio Artists, and Writers Guild of America, West, Inc.
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movies and television shows. These entities also license the transmission of the same works through multiple additional distribution channels, including by way of internet streaming through licensed services, such as Hulu or Netflix. All amici have a significant interest in the interpretation of the public performance right. ARGUMENT Amici respectfully urge the Court to grant en banc rehearing. The Majority Opinion misconstrues an important and economically significant right under the Copyright Act. It does so by reading a prior decision of this Court, Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Cablevision), to require the holding in this case, even though the Court in Cablevision expressly said that its decision should not be taken as carte blanche for future services that mimicked Cablevisions technological architecture, as Aereo does. The decision therefore creates material inconsistency with the very precedent the Court in this case relied on. Further, the decision threatens significant harm not only to Appellants-Broadcasters but to the producers who underwrite and the hundreds of thousands of individuals who work to create the copyrighted works that Aereo appropriates for free. The public performance right is among the most critical rights secured by copyright to the owners of audio-visual content. The right is especially important, and will only become more important, as movies and television shows increasingly are disseminated and viewed through

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internet streams to the public. While the Court properly reserves its en banc resources for cases of surpassing importance, amici submit this is such a case. It is undisputed that Aereo re-transmits through internet streams to thousands of paying subscribers content as it is broadcast over the air. The law is clear that re-transmitting broadcast signals through internet streams is a public performance, which requires a negotiated license. See WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 278-79 (2d Cir. 2012). The Copyright Office has emphasized that businesses that re-transmit broadcast programming without paying the required license fees effectively wrest control away from program producers who make significant investments in content and who power the creative engine in the U.S. economy. Id. at 283 (quoting U.S. Copyright Office, Satellite Home Viewer Extension and Reauthorization Act Section 109 Report, at 188 (2008) (SHVERA Report)). Aereo argues that because it uses tens of thousands of mini-antennae rather than just one, Aereo transforms its undisputed public performance into tens of thousands of non-actionable private performances. If Aereo used a single reception antenna to capture broadcast signals and re-transmit them to thousands of internet subscribers for viewing, it is undisputed that Aereo would need a license, just as numerous legitimate services, such as Hulu and Netflix, negotiate for and obtain to stream broadcast content, including copyrighted movies and television shows to their subscribers. Judge Chin, in dissent, called Aereos system for what it is: a sham and a Rube Goldberg-like contrivance, over-engineered in an -318 of 26

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attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. Dissent at 2. The Majority, however, said that Cablevision compelled it to accept Aereos argument. Cablevision did not compel that holding. Cablevision involved a very different service. It was advocated for and decided on different grounds. And the Court in Cablevision said that its opinion did not provide a blueprint for services to end-run the public performance right with technological contrivances. The Majoritys conclusion that Cablevision required immunizing Aereo from public performance liability based on its architecture thus creates a material inconsistency between these decisions. En banc review is warranted. I. Cablevision Expressly Limited Its Public Performance Holding Cablevision was a licensed re-transmitter of broadcast programming. See Cablevision, 536 F.3d at 123. Its proposed remote-storage digital video recorder (RS-DVR) service was presented to this Court as the functional equivalent of set-top DVR or video-cassette recorder (VCR) machines, with the only difference being that the recording media (computer servers) were located at Cablevisions headquarters rather than on top of its subscribers television sets. Cablevision argued that, because the RS-DVR was functionally equivalent to these home-based devices, Cablevisions copyright liability should be no different from that of manufacturers of VCRs or set-top DVRs.

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This Court rejected the copyright challenges to the RS-DVR and relied heavily on an equivalence rationale in doing so. In holding that Cablevision at most could be secondarily, and not primarily, liable for the copying done on its computer servers, this Court emphasized the similarities between the RS-DVR and the set-top DVR. See id. at 132-33 (finding that Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984), which dealt with VCR copying, buttressed Courts refusal to find Cablevision directly liable on these facts). Having found that Cablevision could not be directly liable for copies made at its subscribers request, the Court had to decide whether Cablevision could be liable for transmitting the recorded shows when subscribers decided to watch them. The Court concluded, on the very specific facts of the RS-DVR service, that the playback function did not involve any public performance of the copyrighted works because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber. Id. at 137. Cablevisions public performance holding was expressly limited. The Court emphasize[d] that its holding on the scope of the public performance right did not generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network. Id. at 139.

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II.

The Court Should Review En Banc the Majority Opinions Needless and Erroneous Expansion of Cablevisions Limited Decision Contrary to the suggestion by the Majority, Cablevision has not painted this

Circuit into a corner in construing the public performance right, but rather left other Panels of the Court, including the Panel in this case, with multiple ways to reach a different result. The Majority could have found that Cablevisions examination of the legality of the RS-DVR functionality as part of an otherwise licensed service was factually distinguishable, since Aereos mass retransmission activities are conducted without any authorization from copyright owners. Cablevision, 536 F.3d at 123. The Majority, however, ignored the fact that the type of service at issue in Cablevision was fundamentally different from that in Aereo, and moreover found the absence of a license not relevant to Aereos liability for making unauthorized retransmissions. Maj. Op. at 24. The Majority could have accepted an argument that Cablevision had not explicitly rejected, id. at 26, namely, that because Aereo was transmitting exactly the same performances of exactly the same works to multiple members of its public audience, it would be appropriate to aggregate those transmissions and find that Aereo was making them to the public. 17 U.S.C. 101(2) (transmit clause). The Majority instead said that it could not accept that argument, because doing so would have required a different result in Cablevision. Maj. Op. at 25-26. The Majority could have heeded Cablevisions admonition that its holding did not provide guaranteed -621 of 26

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immunity for any service that associates unique copies with individual network subscribers. Cablevision, 536 F.3d at 139. Instead, the Majority held that the creation of user-associated copies under Cablevision means that Aereos transmissions are not public; that technical architecture matters (even if that places form over substance); and that it was important to validate Aereos reliance on Cablevision in designing the Aereo service, even though Cablevision made it clear that such reliance was unwarranted. Maj. Op. at 29, 30-31, 33-34. With respect, amici submit that the Majority Opinions construction of the public performance right is manifestly erroneous and threatens to cause significant and unjustified harm to numerous stakeholders in the content-creation and distribution ecosystems.3 The critical questions for Aereos liability for infringing the public performance right are (1) whether Aereo is transmitting performances, i.e., communicating [them] by any device or process whereby images or sounds are received beyond the place from which they are sent, 17 U.S.C. 101 (definition of transmit); and (2) whether Aereo is transmitting those performances to the public, which means any substantial number of persons outside of a normal circle of a family and its social acquaintances. Id. 101(1) (definition of perform publicly). Judge Chins trenchant Dissenting Opinion demonstrates that the clear statutory language and the legislative history
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To avoid burdening the Court with duplicative briefing, amici refer the Court to their prior briefing on the issues of harm in this case. See Amici Panel Br. at 26-31. -722 of 26

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both lead to the conclusion that, when Aereo transmits exactly the same performances of exactly the same works to thousands of different subscribers, Aereo is performing the works publicly. Dissent at 5-15. En banc rehearing would provide this Court the chance to re-set the bounds of the public performance right as Congress intended, without any actual or perceived straightjacket from the Cablevision decision. Amici submit that this is one of the rare cases that justifies the extraordinary use of this Courts limited en banc resources.

DATED: April 16, 2013

Respectfully submitted, /s/ Kelly M. Klaus KELLY M. KLAUS MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071 (213) 683-9100 Counsel for Amici Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc. and Metro-GoldwynMayer Studios Inc.

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SAMANTHA DULANEY I.A.T.S.E. IN HOUSE COUNSEL 1430 Broadway, 20th Floor New York, New York 10018 (212) 730-1770 Counsel for Amicus Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC DUNCAN W. CRABTREE-IRELAND CHIEF ADMINISTRATIVE OFFICER & GENERAL COUNSEL SAG-AFTRA 5757 Wilshire Boulevard, Suite 700 Los Angeles, California 90036 Counsel for Amicus Screen Actors Guild-American Federation of Television and Radio Artists ANTHONY R. SEGALL ROTHNER, SEGALL & GREENSTONE 510 South Marengo Avenue Pasadena, California 91101 (626) 796-7555 Counsel for Amicus Writers Guild of America, West, Inc. SUSAN CLEARY VICE PRESIDENT & GENERAL COUNSEL INDEPENDENT FILM & TELEVISION ALLIANCE 10850 Wilshire Boulevard Los Angeles, California 90024 (310) 446-1003 Counsel for Amicus Independent Film & Television Alliance

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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32 Pursuant to Rule 32 of the Federal Rules of Appellate Procedure, I certify that: 1. This brief complies with the type-volume limitation of Rule

32(a)(7)(B) of the Federal Rules of Appellate Procedure because this brief contains 1,794 words (based on the Microsoft Word word-count function), excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and 2. This brief complies with the typeface requirements of Rule 32(a)(5)

and the type style requirements of Rule 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 14 point Times New Roman type.

Dated: April 16, 2013 /s/ Kelly M. Klaus KELLY M. KLAUS Counsel for Amici Paramount Pictures Corporation, Warner Bros. Entertainment Inc., Directors Guild of America, Inc. and Metro-Goldwyn-Mayer Studios Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of April, 2013, a true and correct copy of the foregoing Brief for Amici Curiae Supporting Petition for Rehearing En Banc was served on all counsel of record in this appeal via CM/ECF pursuant to Second Circuit Rule 25.1(h)(1)-(2). Dated: April 16, 2013 /s/ Kelly M. Klaus KELLY M. KLAUS

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