TVEyes DirecTV

!
aaassseee 222:::111555---cccvvv---000444333666444---FFFMMMOOO---AAAGGGRRR DDDooocccuuummmeeennnttt 222333 FFFiiillleeeddd 000888///000333///111555 PPPaaagggeee 111 ooofff 111111 PPPaaagggeee IIIDDD ###:::666111
DURIE TANGRI LLP

MICHAEL H. PAGE (SBN 154913)
mpage@durietangri.com
MARK A. LEMLEY (SBN 155830)
mlemley@durietangri.com
JOSEPH C. GRATZ (SBN 240676)
jgratz@durietangri.com
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: 415-362-6666
Facsimile: 415-236-6300
Attorneys for Defendant
1
2
3
4
5
TVEYES, INC.
IN THE UNITED STATES DISTRICT COURT
10
FOR THE CENTRAL DISTRICT OF CALIFORNIA
11
WESTERN DIVISION
12
DIRECTV, LLC, a California limited

liability company,
13
Plaintiff,
14
15
16
17
18
v.
TVEYES, INC., a Delaware corporation,
Defendant.
Case No. 2:15-cv-04364-FMO-AGR

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT TVEYES, INC.S
MOTION TO DISMISS OR IN THE
ALTERNATIVE FOR A MORE
DEFINITE STATEMENT
Date: September 24, 2015
Time: 10:00 a.m.
Ctrm: 22 - 5th Floor
Judge: Honorable Fernando M. Olguin
19
20
21
22
23
24
25
26
27
28
MPA ISO DEFENDANT TVEYES, INC.S MOTION TO DISMISS
CASE NO. 2:15-CV-04364-FMO-AGR
!aaassseee 222:::111555---cccvvv---000444333666444---FFFMMMOOO---AAAGGGRRR DDDooocccuuummmeeennnttt 222333 FFFiiillleeeddd 000888///000333///111555 PPPaaagggeee 222 ooofff 111111 PPPaaagggeee IIIDDD ###:::666222
I.
INTRODUCTION
DirecTVs cookie-cutter Complaint is the poster child for Iqbal and Twombly. It is
a lightly edited form complaint used by DirecTV in its myriad lawsuits against garden-
variety satellite television pirates: taverns that show pay-per-view fights to patrons while
paying only for residential use, pirates who make, sell, or use bootleg signal decoders,
motels that wire up multiple rooms without licenses, users who split off signals to their
neighbors without payment, and the like. Indeed, whole swaths of the Complaint are
word-for-word identical to (for example) a lawsuit filed against a different company (IQ
Media Group; see Decl. Michael H. Page Supp. Def.s Mot. Dismiss (Page Decl.) Ex.
10
A), simply reciting the same conclusory elements of a Communications Act Section 605
11
violation (47 U.S.C. 605, hereafter Section 605) without setting forth a short and
12
plain statement of what, exactly or even approximately, TVEyes is accused of doing,
13
much less how those acts either violate the statute or cause DirecTV any harm.
14
Indeed, from reading the Complaint, the reader is left without the slightest idea
15
what it is that TVEyes does: the Complaint at best conveys a vague and entirely false
16
picture of TVEyes as a bootlegger, rebroadcasting DirecTVs satellite signal wholesale to
17
nonpaying viewers over the Internet.
18
This obfuscation is intentional. When a court is advised of what TVEyes actually
19
does, the conclusion is simple: TVEyes is a valuable and entirely legal monitoring
20
servicethe broadcast media analogue to a search engine or book index a la Google
21
Booksprotected as fair use under the Copyright Act and having nothing to do with a
22
Section 605 claim. As Judge Hellerstein of the Southern District of New York recently
23
explained in Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379, 383-84
24
(S.D.N.Y. 2014):1
TVEyes is a media-monitoring service that enables its
subscribers to track when keywords or phrases of interest are
uttered on the television or radio. To do this, TVEyes records
the content of more than 1,400 television and radio stations,
25
26
27
1
28
Page Decl. Ex. B at 31-33.

1
1
2
3
4
twenty-four hours a day, seven days a week. Using closed

captions and speech-to-text technology, TVEyes records the
entire content of television and radio broadcasts and creates a
searchable database of that content. The database, with services
running from it, is the cornerstone of the service TVEyes
provides to its subscribers.
10
The database allows its subscribers, who include the

United States Army, the White House, numerous members of
the United States Congress, and local and state police
departments, to track the news coverage of particular events. For
example, police departments use TVEyes to track television
coverage of public safety messages across different stations and
locations, and to adjust outreach efforts accordingly. Without a
service like TVEyes, the only way for the police department to
know how every station is constantly reporting the situation
would be to have an individual watch every station that
broadcast news for twenty-four hours a day taking notes on each
stations simultaneous coverage.
11
....
12
TVEyes is available only to businesses and not to the

general public. As of October 2013, TVEyes had over 2,200
subscribers including the White House, 100 current members of
Congress, the Department of Defense, the United States House
Committee on the Budget, the Associated Press, MSNBC,
Reuters, the United States Army and Marines, the American Red
Cross, AARP, Bloomberg, Cantor Fitzgerald, Goldman Sachs,
ABC Television Group, CBS Television Network, the
Association of Trial Lawyers, and many others.
5
6
7
8
9
13
14
15
16
17
Because among other factors (a) the TVEyes service has a feature that will block a
18
user from trying to play more than 25 minutes of sequential content from a single station,
19
(b) TVEyes charges $500, much more than the cost of watching cable television, and
20
(c) [n]o reasonable juror could find that people are using TVEyes as a substitute for
21
watching Fox News broadcasts on television, (id.at 385 & 396), the Fox court rejected
22
Foxs copyright claim, finding TVEyes to be a paradigmatic fair use, and finding Foxs
23
other claims preempted by the Copyright Act.
24
DirecTVs careful avoidance of the facts, and attempt at a Section 605 claim, is a
25
transparent attempt at an end run around the Fox opinion. But even on the basis of
26
DirecTVs opaque Complaint, several bases for dismissal are apparent.
27
28
First, TVEyes alleged conduct does not violate Section 605 at all, and the
Complaint thus states no cause of action.
2
Second, because the Complaint pleads that TVEyes violation of Section 605 stems
from having allegedly provided false information concerning the location and use of its
receivers as early as 2006, its claim is long time-barred.2
And third, at a minimum, Rule 8 and the principles of Iqbal and Twombly require a
more definite statement of DirecTVs claims, which as they stand are so amorphous as to
be unanswerable.
II.
ARGUMENT
A.
The Complaint Does Not State a Section 605 Claim
Section 605 is an anti-piracy statute. It prohibits the unlicensed interception of a
10
satellite (or radio) signal in transit, as well as assisting others in doing so (by, for
11
example, making and selling bootleg decoders or splitting off and passing on satellite
12
signals to unlicensed others). What it does not reach is the type of conduct alleged here:
13
the selective subsequent copying and display via the internet of segments of programs
14
initially received by satellite.
15
16
Numerous courts have addressed this distinction, and uniformly have held that such
conduct is the province of copyright law, not the Communications Act.
17
For example, in Zuffa, LLC v. Justin.tv, Inc., 838 F. Supp. 2d 1102 (D. Nev. 2012),
18
the court addressed a claim that a satellite broadcast of a pay-per-view fight was illicitly
19
retransmitted to others over the internet. The Zuffa court found that alleged conduct to be
20
beyond the scope of Section 605:
21
Zuffa does not allege that Justin.tv actually intercepted or

received a cable or satellite broadcast, i.e., a television signal
from a television cable operator over cable infrastructure or a
radio signal transmitted by satellite. Rather, Zuffa alleges that
Justin.tv users received a cable or satellite broadcast (without
allegations to the legality of the reception) and then sent a
digital copy of that broadcast by internet video stream . . . .
22
23
24
25
2
Indeed, for at least 9 years, DirecTV itself has been a paying customer of TVEyes
services, and thus has been well aware, without the slightest objection, of what TVEyes
has been doing with DirecTVs signal, and where. Page Decl. Ex. E. As a result,
27 DirecTV will not be able to amend its Complaint to avoid the statute of limitations on a
discovery theory.
28
26
3
1
2
3
4
5
6
7
In essence, Zuffa alleges that Justin.tvs users copied Zuffas

UFC event and then rebroadcast the UFC event over the
internet. This is not the type of conduct properly addressed
by the Communications Act, but by copyright law (and,
potentially, trademark law). . . . The Court finds no evidence in
the statutory language, other cases, or legislative history that the
Communications Act addresses this type of conduct or was
meant to bolster or act as a separate type of copyright claim.
The Court refuses to extend the law in this manner.
Id. at 1106-07 (emphases added and internal footnotes omitted).
Similarly, in Ark Promotions, Inc. v Justin.TV, Inc., 904 F. Supp. 2d 541 (W.D.N.C.
2012), the court followed Cablevision of Michigan, Inc. v. Sports Palace, Inc., 27 F.3d
566, 1994 WL 245584 (6th Cir. 1994) (unpublished), in which the redisplay of videotaped
10
copies of a satellite broadcast fight while it was still in progress was beyond the reach
11
of Section 605:
12
13
14
15
16
17
18
19
20
21
22
The Sixth Circuit observed that [i]n light of the

legislative history, Section 605(a) may be read as outlawing
satellite signal piracy . . . Cablevision, 1994 WL 245584 at *3.
The court further opined that . . . because any rebroadcast of
cable programming via videotape is not an interception within
the meaning of Section 605(a) the district court had properly
granted summary judgment to the defendant. Cablevision, 1994
WL 245584 at *34.
Id. at 547 (emphasis in Ark Promotions).
The Seventh Circuit is in accord:
The Norris court found the only plausible and consistent
interpretation of the entire legislative history was that Congress
intended for 605 to apply to the unlawful interception of cable
programming transmitted through the air, . . . . Id. at 466. This
court finds the Seventh Circuits holding both legally sound and
logically compelling.
23
TCI Cablevision of New England v. Pier House Inn, Inc., 930 F. Supp. 727, 737 (D.R.I.
24
1996) (quoting United States v. Norris, 88 F.3d 462, 466 (7th Cir. 1996)). And in
25
Premium Sports Inc. v. Connell, 2012 WL 691891, No 10 Civ. 3753(KBF) (S.D.N.Y.
26
Mar. 1, 2012), the Southern District of New York reached the same conclusion, rejecting
27
a Section 605 claim where a satellite subscriber (Caulfield) in Dublin rebroadcast a soccer
28
game to a pub in the United States via Slingbox (i.e., over the internet):
4
If there was a satellite transmission that could have been

intercepted, it would have had to have been before it arrived at
Caulfields apartmenti.e., the interception would have
occurred in Dublin. Plaintiff did not assert a claim against
Caulfield-and it is not clear that it could have. Plaintiff has not
argued or put forward any evidence that the friend in fact
intercepted a satellite communication. By the time the game
reached the [pub], by whatever technology employed, there is no
indication-and no argument has been made-that the transmission
of the game was via the original satellite signal.
1
2
3
4
5
6
7
Id. at *3. As a result, Section 605 did not apply:

It is possible that there would have been other potential
routes to have addressed an allegedly unauthorized use of an
exclusively licensed game. For instance, if the requisite filings
had been made at the Copyright Office, plaintiff might have had
an infringement claim. But plaintiff has not taken those routesand the one it has chosen cannot provide it relief in this Court.
8
9
10
11
Id.; see also Zuffa, LLC v. Kamranian, 2013 WL 1196632, No. 1:11-cv-036 (D. N.D.
12
Mar. 25, 2013) (Section 605 does not reach retransmission by cable, surveying cases).
13
Under the overwhelming weight of caselaw, the conduct alleged here has nothing to
14
do with Section 605. TVEyes recording, indexing and selective display of clips to its
15
customers via the internet cannot, under any stretch of the imagination, be described as
16
interception of the very satellite signal TVEyes has contracted (and paid) to receive.
17
DirecTV couldhad it chosensought to claim a breach of that contract, although that
18
claim would be both preempted and subject to mandatory arbitration, and any damages
19
are at best speculative and unpled. Instead, it has chosen to grab at the brass ring of
20
statutory damages under Section 605. That effort fails: there is no interception, and thus
21
no Communications Act claim stated.
22
B.
DirecTVs Claims are Time-Barred
23
As discussed above, it is difficult to separate the few factual allegations of the
24
Complaint from the conclusory recitation of claim elements. But if there is any factual
25
allegation that DirecTV offers as support for its Section 605 claim, it is that TVEyes
26
breached its DirecTVs license agreements at the outset by providing false information
27
concerning the locations at which its receivers would be located. DirecTV has chosen not
28
to plead this as a breach of contract claim, for several possible reasons: first, that claim
5
might have given DirecTV the right to suspend TVEyes service, but it instead continued
to provide and be paid for that service; second, it would unambiguously bring this case
under the parties mandatory arbitration clause;3 and third, to the extent DirecTV alleges
that TVEyes business model is a breach of contract, that claimas Judge Hellerstein has
already heldis squarely preempted by the Copyright Act.
But for purposes of this motion, DirecTVs choice to disguise its Complaint as a
Section 605 claim based on false statements in TVEyes 2006 and subsequent service
orders4 has a more immediate and simple impact: It renders the claim time-barred. In this
Circuit and state, the statute of limitations for Section 605 claims is one year. DirecTV,
10
Inc. v. Webb, 545 F.3d 837, 850 (9th Cir. 2008) (as Section 605 does not have its own
11
statute of limitations, court applies the closest state analogue: Californias Piracy Acts
12
one-year statute).
13
For each of TVEyes service contracts, the allegedly wrongful actfalsely stating
14
the location and manner at which the service would be usedoccurred once, on the day
15
those allegedly false statements were made. DirecTVs claim, to the extent it has one,
16
accrued on that date, and DirecTV has pled no facts that would toll the applicable statute
17
in any way.
18
19
Although DirecTV pleads nine service contracts, and lists nine cities corresponding
to those contracts (Compl. 24-27), it alleges (on information and belief) that only two
20
21
22
23
24
25
26
27
28
The original contract between TVEyes and DirecTV provided for mandatory arbitration
of any claim. Page Decl. Ex. C at 53. Years later (in 2014) DirecTV unilaterally
purported to change its terms of service to exclude Section 605 and several other
categories of statutory claims from arbitration. Id., Ex. D. Whether that change is
effective, and whether it applies to alleged acts occurring years before that change, will
have to be addressed in the context of whatever factual averments and causes of action (if
any) survive Rule 12 practice.
4
DirecTVs Complaint affirmatively pleads that the false information was provided
beginning in June 2006. The earliest application TVEyes has located to date, Exhibit C to
the Page Declaration, is dated March 13, 2007.
6
of those locations are inaccurate: Valencia and Burlingame, California.5 The dates of the
service contracts for those particular two locations are not alleged, but the Complaint
pleads that TVEyes service agreements generally were established beginning in 2006,
and does not plead any false application within the one-year statute. Thus any Section
605 claim purportedly based on false statements in those service agreements is time-
barred.
C.
In the alternative, the Court should at a minimum either dismiss the Complaint for
In the Alternative, a More Definite Statement Is Required
failure to satisfy Rule 8 or require DirecTV to provide a more definite statement of its
10
claims. Although past correspondence and the exhibit contained within DirecTVs
11
Complaint lead us to assume that DirecTV accuses TVEyes of repackaging snippets of
12
broadcast content and providing them to its customers via the internet, as set forth above
13
that solitary factual allegation cannot support a Section 605 claim. Neither can a time-
14
barred claim based on alleged inaccuracies in TVEyes decade-old service applications.
15
But the formulaic nature of the rest of DirecTVs Complaint, consisting primarily of a
16
mechanical listing of various elements of a Section 605 claim connected by and/or or
17
the like, leave the reader at a loss to discern what else, if anything, TVEyes is accused of
18
and must answer to.
19
The United States Supreme Court has, over the last eight years, clarified Rule 8s
20
requirement that a complaint set out a short and plain statement showing that the pleader
21
is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
22
555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Twombly and Iqbal require a
23
two-step analysis. Iqbal, 556 U.S. at 678. First, a court must consider only the factual
24
allegations of the complaintneither its legal conclusions nor its bare recitation of the
25
elements of a claimin determining whether the plaintiff has made a plain statement of
26
5
And even in those two instances, DirecTV does not actually allege that TVEyes
receivers were not in fact located there, but rather only that the two addresses are a
private residence and a condominium complex. Id. 29.
28
27
7
the grounds of her entitlement to relief. Fed R. Civ. P. 8(a)(2); Twombly, 550 U.S. at 555
(a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do) (alterations in original); Iqbal, 556 U.S. at 678 (Rule 8 demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.). However, a
court need not accept as true allegations that contradict matter properly subject to judicial
notice or by exhibit or allegations that are merely conclusory, unwarranted deductions
of fact, or unreasonable inferences. In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055
(9th Cir. 2008). Second, if plaintiff has alleged sufficient facts to bear out the elements of
10
the claim, the court must then consider whether the adequately pleaded facts state a
11
plausible, rather than a merely possible claim. Iqbal, 556 U.S. at 678; Twombly, 550
12
U.S. at 555.
13
DirecTVs Complaint is devoid of the factual allegations required by Rule 8 and
14
Iqbal and Twombly. Instead, it merely lumps together statements of Section 605s
15
elements without any factual allegations in support: TVEyes received and/or assisted
16
others in receiving DIRECTVs encrypted satellite transmissions,; TVEyes divulged
17
and/or published DIRECTVs encrypted satellite transmissions through channels of
18
transmission or reception; TVEyes violations have injured DIRECTV, including, by
19
way of example, depriving DIRECTV of subscription revenues and other valuable
20
consideration, causing DIRECTV injury in the form of un-recouped Subscriber
21
Acquisition Costs, compromising DIRECTVs security and accounting systems, and
22
interfering with DIRECTVs contractual and regulatory obligations and with DIRECTVs
23
prospective business relations. See Compl. 44-45 & 47.
24
Did TVEyes assist others in intercepting satellite transmissions? If so, who, how,
25
and when? Did TVEyes cause subscribers to cancel their DirecTV subscriptions, and thus
26
cost DirecTV subscription revenues and Subscriber Acquisition Costs? If so, who?
27
When? That allegation in particular (as Judge Hellerstein noted) fails Iqbals
28
plausibility prong. Is it plausible thatfor examplea United States Senator, having

8
signed up for TVEyes $500 tracking service, would as a result cancel his DirecTV
subscription and thereafter have his family watch only short snippets of his own speeches
and news? Of course not. More to the point, there are no facts alleged that would support
that formulaic recitation of harm.
Did TVEyes interfere with business relations? If so, no facts are pled to support
that legal conclusion. With what contracts or relations did TVEyes interfere? With
whom? When and how? How did TVEyes have the requisite knowledge of those
relations? Again, no facts are pled.
This is a form Complaint, slightly tweaked for this case, but devoid of any factual
10
allegations that can support the recited elements of the cause of action. Under the clear
11
dictates of Iqbal, Twombly, and their progeny, this is insufficient, and requires dismissal
12
or a more definite statement.
13
III.
14
CONCLUSION
For the foregoing reasons, this Court should dismiss DirecTVs Complaint for
15
failure to state a claim of violation of Section 605. In the alternative, this Court should
16
either dismiss the Complaint for failure to comply with Rule 8, or order a more definite
17
statement of DirecTVs claims.
18
19
Dated: August 3, 2015
DURIE TANGRI LLP
20
21
22
23
By:
/s/ Michael H. Page

MICHAEL H. PAGE
Attorneys for Defendant
TVEYES, INC.
24
25
26
27
28
9
1
2
CERTIFICATE OF SERVICE
I, Michael H. Page, hereby certify that on August 3, 2015 the within document was
filed with the Clerk of the Court using CM/ECF which will send notification of such filing
to the attorneys of record in this case.
5
6
/s/ Michael H. Page

MICHAEL H. PAGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

TVEyes DirecTV

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

TVEyes DirecTV

Uploaded by

Copyright:

Available Formats

!

DURIE TANGRI LLP

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

DIRECTV, LLC, a California limited

Case No. 2:15-cv-04364-FMO-AGR

plain statement of what, exactly or even approximately, TVEyes is accused of doing,

picture of TVEyes as a bootlegger, rebroadcasting DirecTVs satellite signal wholesale to

nonpaying viewers over the Internet.

This obfuscation is intentional. When a court is advised of what TVEyes actually

servicethe broadcast media analogue to a search engine or book index a la Google

Page Decl. Ex. B at 31-33.

twenty-four hours a day, seven days a week. Using closed

The database allows its subscribers, who include the

TVEyes is available only to businesses and not to the

other claims preempted by the Copyright Act.

DirecTVs opaque Complaint, several bases for dismissal are apparent.

receivers as early as 2006, its claim is long time-barred.2

The Complaint Does Not State a Section 605 Claim

Section 605 is an anti-piracy statute. It prohibits the unlicensed interception of a

initially received by satellite.

beyond the scope of Section 605:

Zuffa does not allege that Justin.tv actually intercepted or

In essence, Zuffa alleges that Justin.tvs users copied Zuffas

The Sixth Circuit observed that [i]n light of the

Premium Sports Inc. v. Connell, 2012 WL 691891, No 10 Civ. 3753(KBF) (S.D.N.Y.

If there was a satellite transmission that could have been

Id. at *3. As a result, Section 605 did not apply:

DirecTV couldhad it chosensought to claim a breach of that contract, although that

no Communications Act claim stated.

DirecTVs Claims are Time-Barred

As discussed above, it is difficult to separate the few factual allegations of the

already heldis squarely preempted by the Copyright Act.

In the Alternative, a More Definite Statement Is Required

Complaint lead us to assume that DirecTV accuses TVEyes of repackaging snippets of

barred claim based on alleged inaccuracies in TVEyes decade-old service applications.

mechanical listing of various elements of a Section 605 claim connected by and/or or

and must answer to.

(a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires

more than an unadorned, the-defendant-unlawfully-harmed-me accusation.). However, a

notice or by exhibit or allegations that are merely conclusory, unwarranted deductions

DirecTVs Complaint is devoid of the factual allegations required by Rule 8 and

others in receiving DIRECTVs encrypted satellite transmissions,; TVEyes divulged

and/or published DIRECTVs encrypted satellite transmissions through channels of

transmission or reception; TVEyes violations have injured DIRECTV, including, by

way of example, depriving DIRECTV of subscription revenues and other valuable

consideration, causing DIRECTV injury in the form of un-recouped Subscriber

Acquisition Costs, compromising DIRECTVs security and accounting systems, and

prospective business relations. See Compl. 44-45 & 47.

plausibility prong. Is it plausible thatfor examplea United States Senator, having

that formulaic recitation of harm.

relations? Again, no facts are pled.

or a more definite statement.

statement of DirecTVs claims.

Dated: August 3, 2015

DURIE TANGRI LLP

/s/ Michael H. Page

to the attorneys of record in this case.

/s/ Michael H. Page

You might also like