3:57pm PT by Eriq Gardner
DirecTV Roasted for Bringing "Cookie-Cutter" Piracy Lawsuit
If you read a story about how many times Donald Trump has been mentioned on cable newscasts in recent weeks, chances are the information is coming from TVEyes, a media monitoring service used by politicians, corporations and reporters.
TVEyes has been defending itself from copyright claims from Fox News, with CBS, NBC and CNN paying attention. The company dodged an initial attack by Fox News when a judge last September ruled that part of the media monitoring service was covered by "fair use," but a judgment is pending on whether letting subscribers download, archive, email and share clips of news shows also is transformative.
Meanwhile, as TVEyes gets attacked on the copyright front, it's also alleged to be illegally obtaining and retransmitting satellite transmissions.
DirecTV filed the lawsuit in June.
"Upon information and belief, at the time it created each subscriber accounts, defendant TVEyes misrepresented to DIRECTV the intended use of DIRECTV programming," states the complaint from attorney Ryan Baker. "By way of example, TVEyes contracted for programming service at what it certified were qualifying Private Viewing Establishments when, in truth and fact, TVEyes knew and intended to display and exhibit that programming to TVEyes’ customers.
On Monday, TVEyes filed a blistering motion to dismiss what it says is a "cookie-cutter complaint," bred from a "lightly edited form complaint used by DirecTV in its myriad lawsuits against garden-variety satellite television pirates."
The defendant adds that "whole swaths of the Complaint are word-for-word identical to (for example) a lawsuit filed against a different company" and that it fails to allege enough facts to plead a plausible claim.
In the motion (read here), TVEyes says the lawsuit is alleging a claim for the unlicensed interception of a satellite signal even though "TVEyes’ recording, indexing and selective display of clips to its customers via the internet cannot, under any stretch of the imagination, be described as 'interception' of the very satellite signal TVEyes has contracted (and paid) to receive."
The defendant further surmises the reasons why DirecTV isn't alleging a breach of contract: First, because the satellite company did nothing but accept TVEyes ' payments since 2006. Second, because such a contract claim would trigger a mandatory arbitration clause (which provides for a twist on the fact that arbitration usually benefits the cable or satellite service provider). And third, such a claim would be preempted by the Copyright Act.
TVEyes believes the lawsuit is barred by the statute of limitations, and as an alternative, asks a judge to demand a more definitive statement of claims.
The defendant, represented by Michael Page at Durie Tangri, even throws up some questions to get the process started.
"Did TVEyes assist others in intercepting satellite transmissions?" asks attorneys for the defendant. "If so, who, how, and when? Did TVEyes cause subscribers to cancel their DirecTV subscriptions, and thus cost DirecTV 'subscription revenues' and 'Subscriber Acquisition Costs'? If so, who? When?... Is it plausible that—for example—a United States Senator, having 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."