Case: 1:20-cv-00583 Document #: 1 Filed: 01/24/20 Page 1 of 10 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`TERRIER MEDIA BUYER, INC.
`d/b/a COX MEDIA GROUP,
`Plaintiff,
`
`v.
`DISH NETWORK L.L.C.,
`Defendant.
`
`
` No. _____________
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`
`
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`
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`COMPLAINT FOR DAMAGES
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`Plaintiff Terrier Media Buyer, Inc. d/b/a Cox Media Group (“CMG”) brings this
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`Complaint against Defendant DISH Network L.L.C. (“DISH”) for copyright infringement. This
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`Complaint is based on CMG’s investigation to date. Based on knowledge as to itself and its own
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`actions, and on information and belief as to all other matters, CMG alleges as follows.
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`INTRODUCTION
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`1.
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`DISH is willfully infringing CMG’s copyrights by unlawfully capturing and
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`retransmitting broadcast signals from 13 local TV stations owned by CMG. The Copyright Act
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`expressly provides for enhanced statutory damages to punish and deter such brazen and knowing
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`violations of the law.
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`2.
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`CMG’s stations broadcast TV programming to the public for free via over-the-air
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`signals. Many households, however, pay to view this programming through cable, satellite, or
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`internet providers’ services. Under federal law, such pay-TV providers must secure
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`broadcasters’ consent to retransmit their signals, and must also obtain a license to retransmit
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`copyrighted programming. This is generally accomplished through retransmission consent
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`agreements between broadcasters and pay-TV providers.
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`3.
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`DISH is a pay-TV provider. It captures broadcast signals from CMG’s stations
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`and then retransmits those signals and the copyrighted content that the signals carry to its
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`customers.
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`4.
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`In the past, DISH has obtained CMG’s consent to retransmission and paid to use
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`CMG’s exclusive right to publicly perform copyrighted content. However, at 7:00 pm Eastern
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`Time on January 18, 2020, CMG’s consent for DISH to retransmit the signals of CMG’s stations
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`expired.
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`5.
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`Despite knowing that CMG had withdrawn its consent, DISH chose to continue
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`capturing and retransmitting the broadcast signals of 13 of CMG’s stations. DISH has thereby
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`willfully infringed CMG’s copyrights and should be ordered to pay enhanced statutory damages
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`under 17 U.S.C. § 504.
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`PARTIES
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`6.
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`Plaintiff Terrier Media Buyer, Inc. d/b/a Cox Media Group is a Delaware
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`corporation with its principal place of business at 1 Manhattanville Road, Suite 201, Purchase,
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`NY 10577 and headquarters at 223 Perimeter Center Drive, Atlanta, GA 303461.
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`7.
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`Defendant DISH Network L.L.C. is a Colorado limited liability company with its
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`principal place of business at 9601 S. Meridian Blvd., Englewood, CO 80112. It maintains an
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`office at 500 North Michigan Ave., Suite 1920, Chicago, IL 60611.
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`RELEVANT NON-PARTIES
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`8.
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`Northwest Broadcasting, Inc. is a Delaware corporation with its principal place of
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`business at 2111 University Park Drive, Suite 650, Okemos, MI 48864.
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`9.
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`NBI Holdings, LLC is a Delaware limited liability company with its principal
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`place of business at 1 Manhattanville Road, Suite 201, Purchase, NY 10577.
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`STANDING
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`10.
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`CMG has standing to institute this infringement action concerning the exclusive
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`right of public performance because CMG is a “legal or beneficial owner of an exclusive right
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`under a copyright.” 17 U.S.C. § 501. In addition, a broadcaster may sue if a satellite carrier
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`violates 17 U.S.C. § 122. Id. § 501(f)(1).
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`JURISDICTION AND VENUE
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`11.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a)
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`because this is a civil action seeking damages for copyright infringement under the Copyright
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`Act, 17 U.S.C. § 101 et seq.
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`12.
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`This Court has personal jurisdiction over DISH because it maintains an office
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`within the District, and it has contractually submitted to personal jurisdiction here.
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`13.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because DISH
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`maintains an office within the District, and it has contractually agreed to this forum.
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`RELEVANT STATUTES
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`14.
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`The Copyright Act grants copyright owners several “exclusive rights to do and to
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`authorize” particular uses of their works. 17 U.S.C. § 106. One of these exclusive rights is “in
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`the case of . . . audiovisual works, to perform the copyrighted work publicly.” Id. § 106(4). This
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`is known as the exclusive right of public performance.
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`15.
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`TV broadcast stations monetize the copyrighted content that they broadcast over
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`the air for free via advertising revenue and retransmission consent fees paid by, among others,
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`cable, satellite, and internet providers.
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`16.
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`The Copyright Act provides that the exclusive right to “perform the copyrighted
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`work publicly” under § 106(4) includes the exclusive right to transmit a performance of the work
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`to the public.
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`17.
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`The Copyright Act further states that performing or displaying a work “publicly”
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`means:
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`(1)
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`(2)
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`to perform or display it at a place open to the public or at any place where a
`substantial number of persons outside of a normal circle of a family and its
`social acquaintances is gathered; or
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`to transmit or otherwise communicate a performance or display of the work to
`a place specified by clause (1) or to the public, by means of any device or
`process, whether the members of the public capable of receiving the
`performance or display receive it in the same place or in separate places and
`at the same time or at different times.
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`Id. § 101. Accordingly, the unauthorized transmission of a broadcast containing copyrighted
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`works is an infringement of the exclusive public performance right.
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`18.
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`The Copyright Act thus brings broadcast retransmissions within the broad scope
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`of the exclusive right of public performance. Moreover, Congress has also passed compulsory
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`licensing schemes to allow the retransmission of broadcasts that contain copyrighted works by
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`certain categories of pay-TV services that meet certain criteria, including: by “cable systems,”
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`id. § 111(c); by “satellite carriers” retransmitting “distant signals” to “unserved households,” id.
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`§ 119; and by “satellite carriers” transmitting “into the station’s local market,” id. § 122. Each of
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`those compulsory licensing schemes is further conditioned on compliance by the licensee cable
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`system or satellite carrier with the “rules, regulations, or authorizations of the Federal
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`Communications Commission,” which include, at the broadcast station’s election, negotiation of
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`“retransmission consent” terms pursuant to § 325(b) of the Communications Act. See 47 U.S.C.
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`§ 325(b).
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`19.
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`CMG relies on its exclusive rights named in the Copyright Act, and its affiliated
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`stations rely on the retransmission consent regime to earn fees and money from advertising to
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`support broadcast programming.
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`SUBSTANTIVE ALLEGATIONS
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`I.
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`The Governing Retransmission Agreement.
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`20.
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`DISH and Northwest Broadcasting, Inc. entered into a retransmission consent
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`agreement dated June 6, 2018 (the “Northwest Retransmission Agreement”). The Northwest
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`Retransmission Agreement governed DISH’s retransmission of all local TV stations listed on
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`“Exhibit A” to that Agreement as of June 6, 2018.
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`21.
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`The Northwest Retransmission Agreement also provided that any station acquired
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`by Northwest Broadcasting, Inc. or any “Affiliate” after June 6, 2018, would be added to
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`“Exhibit A,” “notwithstanding” any other retransmission agreement an acquired station
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`previously had. Critically for this case, this “After-Acquired Stations” provision means that any
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`station acquired by Northwest Broadcasting, Inc.’s parent, NBI Holdings, LLC (“NBI
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`Holdings”), after June 6, 2018, would be added to “Exhibit A” and would be governed by the
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`Northwest Retransmission Agreement, notwithstanding any other retransmission agreement.
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`22.
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`On December 17, 2019, Terrier Media Buyer, Inc. acquired NBI Holdings, and
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`subsequently NBI Holdings acquired 13 local TV stations from Cox Enterprises, Inc. and certain
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`of its affiliates (the “Legacy Stations”). The Legacy Stations include:
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`a. WSB, Atlanta, GA (ABC)
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`b. WFXT, Boston, MA (FOX)
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`c. WSOC, Charlotte, NC (ABC)
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`d. WHIO, Dayton, OH (CBS)
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`e. WFOX, Jacksonville, FL (FOX)
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`f. WHBQ, Memphis, TN (FOX)
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`g. WFTV, Orlando, FL (ABC)
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`h. WPXI, Pittsburgh, PA (NBC)
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`i. KIRO, Seattle, WA (CBS)
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`j. KOKI, Tulsa, OK (FOX)
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`k. WAXN, Charlotte, NC (Independent)
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`l. WRDQ, Orlando, FL (Independent)
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`m. KMYT, Tulsa, OK (MyNetwork)
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`23.
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`Pursuant to the “After-Acquired Stations” provision, NBI Holdings’s acquisition
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`of the Legacy Stations automatically added them to “Exhibit A” of the Northwest
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`Retransmission Agreement, “notwithstanding” any agreement the Legacy Stations previously
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`had with DISH.
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`24.
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`The Legacy Stations had a prior retransmission consent agreement with DISH
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`(the “Legacy Stations Retransmission Agreement”). That Agreement contained a “Station
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`Change in Control” provision that provided for termination of the Agreement if and when the
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`Legacy Stations became governed by any other retransmission agreement.
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`25.
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`Thus, as a result of NBI Holdings’s acquisition of the Legacy Stations and their
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`addition to Exhibit A of the Northwest Retransmission Agreement on December 17, 2019, the
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`Legacy Stations Retransmission Agreement terminated on December 17, 2019.
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`II.
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`The Contract Dispute.
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`26.
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`By its terms, the Northwest Retransmission Agreement was to expire on
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`December 31, 2019. The parties have been negotiating a new retransmission agreement, and
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`agreed to multiple extensions of the Northwest Retransmission Agreement during negotiations.
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`However, when the parties had not reached an agreement at 7:00 pm Eastern Time on January
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`18, 2020 (the “January 18 Deadline”), the Agreement expired. As of that time, DISH no longer
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`had any CMG station’s consent to retransmit its broadcast TV signals.
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`27.
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`Because DISH could not get what it wanted at the bargaining table, it ran to
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`Illinois state court on January 15, 2020. It filed a verified complaint alleging that, despite the
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`unambiguous contractual language, the Legacy Stations Retransmission Agreement remained in
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`effect for the 13 Legacy Stations. At an ex parte hearing on January 15, 2020, the state court
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`entered a temporary restraining order.
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`28.
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`After receiving submissions and hearing argument from the parties, the state court
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`entered an order on January 24, 2020, maintaining its temporary restraining order. The January
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`24 order states, however, that it “does not prevent any Defendant [including CMG] from
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`asserting a right to monetary relief for copyright infringement,” and that the state court has
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`“take[n] no position as to the effect of this Temporary Restraining Order in any such copyright
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`infringement lawsuit, including one asserting any claim for damages based on a finding of
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`infringement during the period of the Temporary Restraining Order.”
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`29.
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`The state court expressly confirmed on the record during the January 24 hearing
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`that the purpose of the temporary restraining order was not to restrain any defendant, including
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`CMG, from seeking copyright damages that occurred at any time since the Legacy Stations
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`Retransmission Agreement expired according to CMG.
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`30.
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` CMG then filed a notice of removal removing the state court case to this Court,
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`and filed this copyright infringement lawsuit.
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`III. DISH’s Copyright Infringement.
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`31.
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`DISH has continued to retransmit the signals of the 13 Legacy Stations after
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`CMG withdrew its consent to retransmission as of the January 18 Deadline. DISH has thereby
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`violated the Copyright Act and infringed CMG’s copyrights.
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`32.
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`On January 24, 2020, CMG sent a letter to DISH, attached as Exhibit A,
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`confirming DISH’s knowledge that any and all retransmission of the Legacy Stations’ signals
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`after 7:00 pm Eastern Time on January 18 is a willful infringement of the Legacy Stations’
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`copyrights.
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`33.
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`Based on a reasonable investigation, CMG believes that DISH continues to
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`retransmit the signals of the Legacy Stations as of the date of this Complaint.
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`34.
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`DISH’s copyright infringement has been and continues to be willful. DISH knew
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`that CMG withdrew its consent to retransmission as of the January 18 Deadline. DISH also
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`knows that its continued retransmission after that time was willful and therefore subject to
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`enhanced statutory damages, as evidenced by, among other things, its submissions and
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`statements to the Illinois state court acknowledging that it would be liable for willful-
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`infringement damages if it lost the contract dispute.
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`35.
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`DISH has also violated 47 U.S.C. § 325 by rebroadcasting without the express
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`authority of the Legacy Stations. And by violating 47 U.S.C. § 325, DISH also violated 17
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`U.S.C. § 122, because DISH failed to comply with the FCC rules for broadcasting.
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`COUNT I
`COPYRIGHT INFRINGEMENT
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`36.
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`CMG restates and incorporates by reference all of the above Paragraphs as if fully
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`set forth herein.
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`37.
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`CMG is a legal and beneficial owner of the copyrights of numerous programs that
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`have been broadcast by the Legacy Stations and retransmitted without consent by DISH since
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`7:00 pm Eastern Time on January 18, 2020.
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`38.
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`CMG is a legal and beneficial owner of the copyrights of numerous programs
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`that, on information and belief, will be broadcast by the Legacy Stations and retransmitted
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`without consent by DISH after the filing of this Complaint.
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`39.
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`Each such program is an original audiovisual work that has been or will be fixed
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`in a tangible medium of expression and constitutes copyrightable subject matter within the
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`meaning of 17 U.S.C. § 102. Each such program has been or will be, consistent with the
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`requirements of 17 U.S.C. § 411, registered with the United States Copyright Office.
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`40.
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`CMG has the exclusive rights under 17 U.S.C. § 106(4) to, among other things,
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`“perform the copyrighted work publicly” and to authorize the public performance of that work.
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`41.
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`Since the January 18 Deadline, neither CMG nor any other person or entity
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`authorized by CMG have granted permission, authorization, or a license to DISH to exercise any
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`of CMG’s exclusive rights, including under 17 U.S.C. § 106(4), with respect to the programs or
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`any other works in which CMG owns copyrights.
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`42.
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`By continuing to retransmit signals from CMG’s stations without CMG’s
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`permission, DISH has exercised and will exercise (or has authorized or will authorize others to
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`exercise) CMG’s exclusive rights under 17 U.S.C. § 106(4) with respect to the programs or any
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`other works in which CMG owns copyrights.
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`43.
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`44.
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`DISH’s acts of infringement are willful, in disregard of CMG’s rights.
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`As a direct and proximate result of DISH’s infringement, CMG has been harmed
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`and is entitled to damages.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff respectfully requests the following relief:
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`A.
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`B.
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`Entry of judgment against Defendant on all Counts;
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`An award of compensatory damages and Defendant’s profits, or alternatively of
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`maximum statutory damages, in an amount to be determined at trial;
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`C.
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`D.
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`An award of pre-judgment interest;
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`An award of post-judgment interest; and
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`E.
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`Any other legal and equitable relief that the Court deems proper.
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`Dated: January 24, 2020
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`Respectfully submitted,
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`/s/ Scott Lassar
`
`Scott Lassar (No. 1586270)
`Bruce R. Braun (No. 6206628)
`Hille R. Sheppard (No. 6226077)
`John M. Skakun III (No. 6297636)
`SIDLEY AUSTIN LLP
`One South Dearborn
`Chicago, IL 60603
`Telephone: (312) 853-7000
`Facsimile: (312) 853-7036
`slassar@sidley.com
`bbraun@sidley.com
`hsheppard@sidley.com
`jskakun@sidley.com
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`Attorneys for Plaintiff Terrier Media Buyer,
`Inc. d/b/a Cox Media Group
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