# Appendix — Teleprompter Corp. v. Columbia Broadcasting System, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0229%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 415 U.S. 394 ## Text TABLE OF CONTENTS Opinion of the Court of Appeals ............... Judgment of the Court of Appeals .............. Astended Complaint: «50065 6 VARS Supplemental Complaint ...................... Answer to Supplemental Complaint and Supple- mental Answer ...... Be Rl ng peg apa ramen Order (Pretrial Order Number Two) .......... Second Supplemental Complaint ................ Answer to Second Supplemental Complaint ...... Pretrial Order Number Three ..............4.. Ee ere ee PET! Ba a PURI oo kk eke tceeicics ORS Bie OF AGOONE oaks oc ccce tina Stipulation Number One ...................... Stipulation Number Two ...................00. Bamtrpts from Trameeiet oo 3... co oo ii TESTIMONY WITNESSES FOR PLAINTIFFS: PAGE Jencks, Richard William: Direct by Mr. Sokolow .................... 292a ek ee Baer nena ue Nee a) oo * 299a Chertok, Jack: eereek ty Mir, Moriee oo... 5 5. 5. oss eke cs, 310a Offer of Proof by Mr. Moran .............. 3lla eee ee ae 312a Offer of Proof by Mr. Moran .............. 314a Davis, Edwin W.: Lrect by air. Scio on. es 5 5 os 314a Vor tre Or Sis. Barnard ....... 3.0 cccccsnce 321la og CS | EES Poa n aan aerate = 321la . 5 Re re eeerenr era See COI no os cc kv cnn cisensces 322a NE 6 top ons oc ds kone caea beans 323a RPO COMIN Fs i vio no Re van 325a PN or sks vn ook Seseeeasnue 326a Ram TI ass os ain ss owes ee wea 327a gee a ee ene 327a Examination by the Court ................. 365a 5 Ee ere Pere rs” 366a I i eek io ou a a Sb RRO 366a PAGE Gray, Gordon: ° oe Direct by Mr. Sokolow .......... eave 367a COON OY BEE. DOSUING is. oo a ccnvassccacen 379a Voir Dire by Mr. Sokolow ................ 384a Cross (Cumtinned) cvs anos canscnnvdie sees 384a II eon he cess es io caret es 390a MN ES OCF CER as Viv cee s ea ee 390a Moore, Dale: Direct by Mr. Sokolow .........-.++-2+-+0- 392a Offer of Proof by Mr. Sokolow ............. 397a TOE COOUUNO) sv k0 nid 985 wniee veka nes 398a Cross ty Mis. Therma: 03... stecceciwne eevee 403a NE sass vs ee cs mie 419a Burkey, Evelyn F.: Direct by Mr. Solow «... «2.000055 «cdg h ceed 420a Offer of Proof by Mr. Sokolow ............. 422a Cross by Mr, Barnard ..........---++++0e. 423a PN POR PC Cee OLE 428a ee ean. nga eer Gay eater EF eo 429a Reel, Frank A. : Direct by Mr. Sokolow ..........+. ciel bhi 430a Offer of Proof by Mr. Sokolow .........-..- 436a Cross by Mr. Barnard .............2c00- .. 437a Finkelstein, Herman: Direct by Mr. Sokolow ............--+-++5 . 44la Offer of Proof by Mr. Sokolow ............- 444a Cross by Mr. Barnard .........----e+ee0-- 446a vi United States Bistrict Court SouTHERN District or New York 64 Civil 3814 dp. ¥ CoLuMBIA BROADCASTING System, Inc., Catvapa Pro- DUCTIONS, a joint venture, Jack CHERTOK TELEVISION, Inc., Dena Picrurss, INc., Plaintiffs, US. TELEPROMPTER CORPORATION and ConLEYy ELECTRONICS CORPORATION, Defendants. (3-29-66) amended - > Docket Entries 3 Date Proceedings Dec. 11-64—Filed complaint and issued summons. Dec. 23-64—Filed summons summons & return, served deft. 12-15-64 Jan. 5-65—Filed stip. & order extending deft’s time to answer to 1-25-65—Bonsal, J. Jan 22’65—Filed Stip and Order extending time for defendant to answer from 1/25/65 to and including 2/9/65, Edel- stein, J. Feb. 9-65—Filed deft’s ANSwER. Feb. 9-65—Filed deft’s notice to take deposition of pltff’s. Mar. 465—Filed stip. & order adjourning depositions of plffs. to 4-19-65—Levet, J. Apr. 14-65—Filed stip. & order adjourning depositions of pltffs. & deft. to 5-19-65—Tenney, J. vii-. Docket Entries Date Proceedings Apr. Apr. Apr. Apr. Apr. June June June June July July 19-65—Filed pltffs’ affdvt. & notice of motion for summary judgment—ret. 5-4-65— 19-65—Filed affdvt. of Edwin W. Davis in support of motion 19-65—Filed affdvt. of Royal E. Blakeman 19-65—Filed affdvt. of Herbert Bonis 19-65—Filed affdvt. of Linda Sell 19-65—Filed affdvt. of Jack Chertok 19-65—Filed pltffs’ memorandum in support of motion for sum- mary judgment, etc. 3-65—Filed stip. adjourning motion for summary judgment to 6-8-65 12-65—Filed stip. & order adjourning date re: depositions of pitffs & defts. until 20 days after a final order re: pitffs’ motion—etc.—Feinberg, J. 1-65—Filed affdvt. of Asa D. Sokolow in opposition to motion for Rule 2 Judge 1-65—Filed deft’s affdvt. & notice of motion for a Rule 2 Judge—ret. 5-28-65 before Ryan, J. 1-65—Filed memo endorsed on motion filed 6-2-65—Motion for Rule 2 judge is denied without prejudice to renewal if the deft. is so advised after determination of the pending motion for summary judgment—So ordered—Ryan, J.— mailed notice 7-65—Filed stip. & order adjourning mdtion for summary judgment to 6-22-65—Palmieri, J. 14-65—Filed affdvt of Walter Schier in opposition to motion for summary judgt. 14-65—Filed deft’s memorandum of law in opposition to sum- mary judgt. viii Docket Entries Date Proceedings Mar. 21-65—Filed deft’s reply to pitffs’ motion for summary judgment 21-65—Filed affdvt. of Donald D. Schilling in opposition 21-65—Filed affdvt. of Donald L. Guthrie 21-65—Filed affdvt. of Walter A. Kinash in opposition 21-65—Filed affdvt. of A. Earl Cullum, Jr. in support of oppo- sition 21-65—Filed affdvt. of Joseph Silverman 21-65—Filed affdvt. of Marvin L. Thall 21-65—Filed affdvt. of E. Stratford Smith in opposition 21-65—Filed deft’s memorandum in opposition 16-65—Filed pltffs’ reply memorandum 16-65—Filed pitffs’ reply memorandum 16-65—Filed Opinion #31,880—Nothing herein contained is intended to express any opinion as to the merits, nor as to whether deft. should or should not have an opportunity to discover facts claimed by deft. to be relevant to the issues here. For the reasons indicated, the motion for summary judgment is denied—So ordered—Wyatt, J.— mailed notice 20-66—Filed memorandum endorsed—Motion granted after hearing, Herlands, J. designated as a Rule 2 Judge & an order was signed & filed—Ryan, Ch. J. 21-66—Filed order referring action to Herlands, J. for all pur- poses, Ryan, Ch. J. 21-66—Filed stip & order adjourning motion for designation of Rule 2 Judge to 1-20-66—Ryan, Ch. J. 21-66—Pre-Trial Confer, Held Before: Herlands, J. 29-66—Filed consent order—granting pltff. leave to file amended complaint—Herlands, J. ix De k : E; . ies Date Proceedings Apr. 6-66—Filed pitff’s (CBS) amended complaint Apr. 7-66—Filed amended summons with notice of service on Katz Moselle & Schier—4-6-66 Apr. 26-66—Filed deft’s amended ANSWER to amended complaint May 18-66—Filed transcript of record on proceedings of 3-21-66 3-26-69 | —Pre-trial conference held. HERLANps, J. 6/19/69 —Filed Transcript of record of proceedings, dated 3/26/69 Oct. 14-69—Filed order referring action to Motley, J. for all pur- poses.—Sugerman, Ch. J.—m/n Dec 15-69—Hearing held before Motley, J——Motion granted for leave to file suppl. complaint. Deft has to 1-30-70 to answer, otherwise more with respect thereto Dec 31-69—Filed Transcript of record of proceedings, dated Dec. 15-1969 Jan 30-70—Filed defts notice of change of name of attys. Jan 30-70—Filed defts answer to supplemental complaint and supple- mental answer. Oct 23-70—Filed pre trial order Number one—Motley, J. Apr 15 71—Before Motley, J—Hearing Held—Decision Reserved May 17 71—Filed Orper that pitff’s motion to file a 2d Supplemental complaint is granted. Defts shall have until 6-1-71 to file an answer to 2d Suppl. complaint. All pretrial discovery re: trial of the first stage of this case to be completed be- fore 6-30-71. All parties are to-file before 8-1-71 a pre- trial memorandum as indicated. The parties to file NLT 9-1-71 a new proposed pretrial order relating to the first stage. If parties are unable to agree on single proposed order, each pty shall file a separate proposed order by 9-1-71. A final pretrial conference will be held.on 9-15-71 at 9:30 am. The case will proceed to trial on 9-22-71 at 10 am. So Ordered—Motley, J. (mailed notices) x Docket Entries Date Proceedings Sept. Sept. Sept. 24-71—Filed pltff Columbia Broadcasting System for the pro- duction of documents. 21-71—Filed pltffs CBS second supplemental complaint 21-71—Filed pltff CBS notice of entry 17-71—Filed pre trial order No. 3—Motley, J. = 9-71—Filed transcript of record of proceedings on 4-15-71. 15 71—Pre-Trial Conference held & concluded. Trial Sept. 22 1971 at 2 pm Room 129. Motley, J. 21 71—Pre-Trial Conference held & concluded. 22 71—Trial begun before Motley, J. non-jury. 23 71—Trial Cont’d. Sept. 24 71—Trial Cont'd. Sept. Sept. Sept. Dec. 27 71—Trial Cont'd. 28 71—Trial Cont’d and adj. to Sept. 30. 30 71—Trial Cont’d and concluded. “Decision Reserved.” 28-71—Filed Transcript of record of proceedings, dated 9-15-71. 28-71—Filed Transcript of record of proceedings, dated 9-23-71. 28-71—Filed Transcript of record of proceedings, dated 9-24-71. 28-72—Filed Transcript of record of proceedings, dated 9-21-71. 28-72—Filed Transcript of record of proceedings, dated 9-22-71. 28-72—Filed Transcript of record of proceedings, dated 9-28-71. 29-71—Filed Transcript of record of proceedings, dated 9-30-71. May May Jun Jun Jun xi Docket Entries — Date eee 2-72—Filed Opinion #38463—Taking the law in its present State, we find that the CATV’s before us do not function as broadcasters within the meaning of the Fortnightly test, that they therefore do not “perform” pltffs’ works, & hence do not infringe their copyrights. We, of course, do not reach any of defts’ arguments other than those considered above. Settle order on five days’ notice— Motley, J. 17 72—Filed Pre-Trial Order No. 4 dated Sept. 14 1971. Motley J. : . 21-71—Filed Pre Trial Order No. 5. Motley, J. 17-71—Filed Pre Trial Order No. 3. Motley, J. 18-72—Filed stipulation Number Two. 18-72—Filed stipulation Number One. 22-72—Filed Defendants’ Statement and Lists pur. to Paragraph 3 of Pretrial Order No. 3. 22-72—Filed Defendants’ Rebuttal Statement and Lists pur. to Paragraph 4 of Pretrial Order No. 3. y 22-72—Filed Deft’s. Statement of Objections to Rebuttal Exhib- its pur. to Paragraph 5 of Pretrial Order No. 3. 22-72—Filed Defendants’ Third Additional Document List. 13 72—Filed Defts’ Notice of motion (no-date returnable) for judgment in form annexed in favor of defts against pltffs dismissing the complaint, with costs to be taxed by the Clerk & for allowance of atty’s fees. 13 72—Filed Memo of law in Support of motion filed this day. 23 72—Before Motley J.—Application for Teleprompter to col- lect $35,000. atty fees—denied. st xi Docket Entries Proceedings Jun 2772—Filed Jupcment—Ordered that the Amended Complait and First and Second Suppl. Complaints are dismisse on the merits and that the action is dismissed. Adjudge that the defts Teleprompter Corp. and Conley Electronic Corp. recover of the pltffs CBS Inc., Calvada Produ tions, Jack Chertok Television Inc. and Dena Picture Incorp. the costs of this action in this Court to be taxe by the Clerk herein pursuant to 17 U.S.C. Sec 116; an that the application by said defts for legal fees is heret denied. Motiey J. Judgment entered—Clerk. (maile notices ) ENT: 6-28-72. Jun 2872—Filed Pitff CBS Inc. et al. Notice or AppEat $5.00 fro final judgment entered 6-27-72. Copies mailed Aug 22-72—Filed stipulation and order that the attached list of co: rections of the transcript of trial is deemed to be co rected & modified to reflect such corrections. MOTLEY, | Aug 22-72—Filed notice to the docket clerk that the record on appe: has been certified and transmitted to the U.S.C.A. —Filed Transcript of record of proceedings, dated June 2. 1972 eee UNITED STATES COURT OF APPEALS For THE SECOND CircUIT Case No. 72-1800 -% aA CoLuMBIA Broapcastinc System, Inc., CALvapa Pro- DUCTIONS, a joint venture, Jack CHERTOK TELEVISION, Inc., Dena Pictures, INc., Plaintiff s-A ppellants, Vv. TELEPROMPTER CORPORATION and Contey Erectronics Corporation, Defendants-A ppellees. Filings—Proceedings Filed copies of docket entries and notice of ap- peal - Received docket fee Filed order extending time to file appellants brief and appendix to 10-2-72; appellees brief by 11-1-72; appellants reply brief by 11-15-72 Filed order extending time to file record to 8-22-72 Filed Record (original papers of district court) Filed motion for leave to file a brief amicus _curiae (NCAA) with proof of service Filed order granting leave to file appellant’s brief not to exceed 64 pages @ 9-22-72 10- 2-72 10- 2-72 10- 2-72 10- 2-72 10- 2-72 10-16-72 10-16-72 10-16-72 10-16-72 10-16-72 10-19-72 11-15-72 11-16-72 11-17-72 11-17-72 xiv Filings—Proceedings Filed order granting motion for leave to file a brief amicus curiae, which is to be filed by 10-2-72 (NCAA) Filed motion for leave to file brief amicus curiae (ASCAP) with proof of service Filed motion for itl aller amicus curiae and participate in o argument (Assoc. of Motion Picture Assoc. of Ameri- ca) with proof of service ° Filed joint appendix ~ Filed brief, appellants with proof of service Filed joint exhibit (4 vols.) Filed order ting leave to file brief amicus curiae (ASCAP) Filed order granting leave to file brief amicus curiae (MPAA); otherwise denied Filed brief, amicus curiae (ASCAP) with proof of service Filed brief, amicus curiae (MPAA) with proof of service Filed motion to extend time to file appellees brief with proof of service Filed order ing motion to extend time to file appellees brief to 11-15-72; appellees brief shall not exceed 75 pages Filed appelles brief w/proof of service Filed motion for leave to file brief amicus curiae (National Cable Television Associa- tion, Inc.) w/proof of service Filed order granting leave to file brief amicus curiae (NCTA) Filed brief (amicus curiae NCTA) w/proof of service 6- 8-73 10-15-73 10-16-73 Filed reply brief w/proof of service Filed tal record (origi , eas (original papers Argument heard (by: Lumbard, Kaufman, Mansfield, CJJ) udgment Affirmed in Part and Reversed & gery li Sic Filed judgment Certified original record & proceedings for: Cleary, Gottlieb, Steen & Hamilton is Issued Mandate (opinion & judgment) Filed notice of filing of petition for writ of iorari (T. , etal.) (S.C. a Mew) a Filed notice of filing of petition for writ of certiorari (Columbia Broadcasting System, Inc., et al.) (S. C. No. 72-1633) to “gulag pane Geet ae granting petition for writ of certiorari (Tele- prompter Corporation, et al.) Filed certified copy of order of Supreme Court granting petition for writ of certiorari (Co- lumbia Broadcasting System, et al.) xvi Opinion of the Court of Appeals Court of Appeals, Second Circuit CotumsBia Broapcastinc System, INnc., et al. v. TELEPROMPTER CORPORATION et al. No. 72-1800 Decided Mar. 8, 1973 Appeal from District Court for Southern District of New York, Motley, J.; 173 USPQ 778. Action by Columbia Broadcasting System, Inc., Cal- vada Productions, Jack Chertok Television, Inc., and Dena Pictures, Incorporated, against Teleprompter Corporation and Conley Electronics Corporation for copyright infringe- ment. From judgment dismissing complaints, plaintiffs appeal. Modified. See also 148 USPQ 417. Asa D. SoxoLow and Szymour Grausarp, both of New ~ York, N. Y., for appellants. ROsENMAN, CoLin, Kaye, PetscHEK, Freunp & Emit, New York, N. Y., for Columbia Broadcasting System, Inc. MaRsHALL, BratTrer, GREENE, ALLISON & TucKER, New York, N. Y., for Calvada Productions. ALEXANDER & GREENE, New York, N. Y., for Jack Cher- tok Television, Inc. GrauBarD, Moskovitz, McGotpricx, DANNETT & Horo- witz, New York, N. Y., for Dena Pictures, Incorporated. seul Opinion of the Court of Appeals Rosert C. BARNARD, JULIUS Levy, CLEARY, GOTTLIEB, Steen & Hamitton, R. Micnazet Duncan, Katz, RosENSWEIG & SINDLE, and Davin Z. RosENSWEIG, all of New York, N. Y., for appellees. Paut, WEtss, RirK1Inp, WHARTON & GARRISON, HERMAN FINKELSTEIN, SIMON H. RiFKinp, JAY H. Topxts, and Paut L. Lask1n, all of New York, N. Y., for American Society of Composers, Authors and Publishers, amicus curiae. Stuart F, FELpsTEIn, CHARLES S. WALSH, and STEPHEN A. Gop, all of Washington, D. C., for National Cable Television Association, Inc., amicus curiae. Puitiipes, NizEr, BENJAMIN, Krim & BALton, Louis Nizer, GERALD MEYER, and GERALD F. PHI Ps, all of New York, N. Y., for Motion Picture Association of America et al., amici curiae. Before LumBarpo, KAUFMAN, and MANSFIELD, Circuit Judges. Lumsarp, Circuit Judge. Plaintiffs-appellants, Columbia Broadcasting System, .._Inc. (CBS), Calvada Productions, Jack Chertok Television, Inc., and Dena Pictures, Incorporated appeal from a final judgment entered after trial in the Southern District. Ap- pellants commenced this copyright infringement action’ against defendants-appellees, Teleprompter Corporation (Teleprompter) and its subsidiary Conley Electronics Cor- poration, who own and operate numerous Community An- tenna Television (CATV) systems throughout the country. *The original action was commenced on December 11, 1964. At- tempts to consolidate this action with United Artists Television v. Fortnightly, 255 F. Supp. 177, 149 USPQ 758 (S. D. N. Y. 1966), afPd 377 F’ 2d 872, 153 t USPQ 696 (2d 1967), rev'd 392 U.S 390, 158 USPQ 1° (1968), in the district Court were tnsyovessful The ies voluntarily Race ie Peccaiuly accion haaleicend y was on After the Fortnight! wg Teseaag » 82. Plaintiff Chertok complied in all respects with Title 17, United States Code and all other laws governing copyrights, secured the exclusive rights and privileges in and to the copyright of said program, and received from the Register of Copyrights a certificate of copyright . registration identified as follows: Class L, No. Lp29269, dated December 3, 1964. It is not physically feasible to Amended Complaint attach a copy of said program to this complaint, but a copy will be made available to the Court when required. 83. At the time of the infringements hereinafter mentioned, plaintiff Chertok was and still is the sole proprietor of the copyright described in paragraph 82, supra, and plaintiff CBS was and still is the sole and exclusive licensee of the right to publicly perform, ex- hibit, represent, produce, reproduce and copy said pro- gram by means of television. 84. On November 29, 1964, CBS transmitted the afore- said program to its affiliates, and on the same date, CBS affiliates, including the CBS affiliate located in Pitts- burgh, Pennsylvania, broadcast the aforesaid program. 85. On November 29, 1964, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhibited, represented, produced, reproduced and copied the aforesaid program by distributing it to its many pay- ing subscribers in Johnstown, Pennsylvania, among other places presently unknown to plaintiffs, by receiving, re- prodyeing and distributing signals emitted by CBS affili- ates, including the affiliate located in Pittsburgh, Pennsylvania. 86. By these acts, defendant Teleprompter and/or Conley, without license or authority from plaintiffs, in- fringed the copyright referred to in paragraph 82, supra. 87. By reason of such infringements, plaintiffs CBS and Chertok have sustained substantial injury and damage, and unless this Court permanently restrains the defendant SS 2ila Amended Complaint from further commission of said acts, plaintiffs CBS and Chertok will suffer irreparable injury for which plain- tiffs CBS and Chertok have no adequate remedy at law. FOR A TENTH CLAIM FOR RELIEF - -ON BEHALF OF PLAINTIFF CBS AND A FIRST CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF DENA 88. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 11 of this complaint. 89. Plaintiff Dena has created and produced an original weekly series of television programs entitled “Phe Danny Kaye Show", a comedy-variety show. 90. Prior to the 8th day of November, 1964, plain- tiff Dena originated, created and produced @ program in “nig” Danny Kaye Show" series with guest stars Shari Lewis This program is a motion picture and and Howard Morris. a dramatic work, contains a large amount of material wholly original, and is copyrightable subject matter under the laws of the United States. ‘gl. Plaintiff Dena complied in all respects with Title 17, United States Code and all other laws governing copyrights, secured the exclusive rights and privileges in and to the copyright of said program, and received from the Register of Copyrights a certificate of copyright registration identified as follows: Class L, No. Lp29264, dated December 3, 1964. It is not physically feasible to attach a copy of said program to this complaint, but a copy will be made available to the Court when required. Amended Complaint 92. At the time of the infringements hereinafter mentioned, plaintiff Dena was and still is the sole prop- rietor of the copyright described in paragraph 91, supra, and plaintiff CBS was and still is the sole and exclusive licensee of the right to publicly perform, exhibit, repre- sent, produce, reproduce and copy said program by means of television. 93. On November 11, 1964, CBS transmittedthe afore- said program to tts affiliates, and on the same date, CBS affiliates, including affiliates located in Albuquerque, New Mexico and Binghamton and Syracuse, New York, broad- cast the aforesaid program. 94. On November 11, 1964, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhibited, represented, produced, reproduced and copied the aforesaid program by distributing it to its many pay- ing subscribers in Farmington, New Mexico and Elmira, New- York, among other places presently unknown to plaintiffs, by receiving, reproducing and distributing signals emitted by CBS affiliates, including affiliates located in Albu- . querque, Binghamton and Syracuse. 95. By these acts, defendant Teleprompter and/or Conley, without license or authority from plaintiffs, in- fringed the copyright referred to in paragraph 9l, supra. 96. By reason of such infringements, plaintiffs CBS and Dena have sustained substantial injury and damage, and unless this Court permanently restrains the, esitentent from further commission of said acts, plaintiffs CBS and Dena 23a Amended Complaint will suffer irreparable injury for which plaintiffs CBS and Dena have no adequate remedy at law. FOR AN ELEVENTH CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF CBS AND A SECOND CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF DENA oT. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through ‘11 and para- graph 89 of this complaint. 98. Prior to the 15th day of November, 1964, plain- tiff Dena originated, created and produced a program in “Phe Danny Kaye Show” series with guest stars Diahann Carroll and Don Knotts. This program is 4 ection picture and a dramatic work, contains @ large amount of material wholly original, and is copyrightable subject matter under the laws of the United States. 99. Plaintiff Dena complied in all respects with Title 17, United States Code and all other laws governing copyrights, secured the exclusive rights and privileges in and to the copyright of said program, and received from-the Register of Copyrights a certificate of copy- right registration identified as follows: Class L, No. Lp29265, dated December 3, 1964. It is not physically feasible to attach a copy of said program to this com- plaint, but a copy will be made available to the Court when required. 100. At the time of ‘the infringements hereinafter mentioned, plaintiff Dena was and still is the sole proprietor of the copyright described in paragraph 99, 222-2 2-e Amended Complaint supra, and plaintiff CBS was and still is the sole and ex- clusive licensee of the right to publicly perform, exhibit, represent, produce, reproduce and copy said program by means of television. _ 101. On November 18, 1964, CBS transmitted the afore- said program to its affiliates, and on the same date, CBS affiliates, including affiliates located in Albuquerque, New Mexico, Buffalo, Syracuse and Binghamton, New York, and Scranton, Pennsylvania, broadcast the aforesaid pro- gram. 102. On November 18, 1964, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhibited, represented, produced, reproduced and copied the aforesaid program by distributing it to its many pay- ing subscribers in Farmington, New Mexico and Elmira, New York, among other places presently unknown to plaintiffs, by receiving, reproducing and distributing signals emitted by CBS affiliates, including affiliates located in Albu- querque, Buffalo, Syracuse, Binghamton and Scranton. 103. By these acts, defendant Teleprompter and/or Conley, without license or authority from plaintiffs, in- fringed the copyright referred to in paragraph 99, supra. 104, By reason of such infringements, plaintiffs CBS and Dena have sustained substantial injury and damage, and unless this Court permanently restrains the defendant from further commission of said acts, plaintiffs CBS and Dena will suffer irreparable injury for which plaintiffs CBS and Dena have no adequate rememdy at law. 25a Amended Complaint FOR A TWELFTH CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF CBS AND A THIRD CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF DENA 105. Plaintiffs repeat and reallege each and every — allegation contained in paragraphs 1 through 11 and para- graph 89 of this complaint. 106. Prior to the 25th day of November, 1964, plain- tiff Dena originated, created and produced a program in "The Danny Kaye Show™ series with guest star Gwen Verdon. This program is a motion picture and a dramatic work, con- tains a large amount of material wholly original, and is copyrightable subject matter under the laws of the United . States. é : . 107. Plaintiff Dena complied in all respects with Title 17, United States Code and all other laws governing copyrights, secured the exclusive rights and privileges in and to the copyright of said program, and received from the Register of Copyrights a certificate of copyright registration identified as follows: Class L, No. Lp29266, dated December 3, 1964. It is not physically feasible to attacti a copy of said program.to this complaint, but a copy will be made available to the Court when required. 108. At the time of the infringements hereinafter mentioned, plaintiff Dena was and still is the sole proprietor of the copyright described in paragraph 107, supra, and plaintiff CBS was and still is the sole and 4 exclusive licensee of the right to publicly perform, ex- hibit, represent, produce, reproduce and copy said pro- gram by means of television. - 109. On November 25, 1964, CBS transmitted the aforesaid program to its affiliates, and on the same date, CBS affiliates, including the CBS affiliate located in Johnstown, Pennsylvania, broadcast the aforesaid program. 110. On November 25, 1964, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhibited, represented, produced, reproduced and copied the aforesaid program by distributing it to itssmany pay- ing subscribers in Johnstown, Pennsylvania, among other places presently unknown to plaintiffs, by receiving, reproducing and distributing signals emitted by CBS affiliates, including the affiliate located in Johristown, Pennsylvania. lll. By these acts, defendant Teleprompter and/or Conley, without license or authority from plaintiffs, in- fringed the copyright referred to in paragraph 107, supra. 112. By reason of such infringements, plaintiffs CBS and Dena have sustained substantial injury and damage, and unless this Court permanently restrains the defendant from further commission of said acts, plaintiffs CBS and Dena will suffer irreparable injury for which plaintiffs CBS and Dena have no adequate remedy at law. WHEREFORE, plaintiffs demand judgment: 1. That defendant Teleprompter and/or Conley, its agents, servants, subsidiaries, and all persons acting under its direction, control, peiiission or license, be enjoined during the pendency of this action and perma- mais from infringing the aforesaid copyrights in any 27a Amended Complaint 2. That defendants be required to pay such damages — as plaintiffs have sustained in consequence of defendants' said unlawful acts, but in no event less than Two Hundred Fifty ($250.00) Dollars for each infringement; 3. That defendants pay to plaintiffs the cost of this action, and reasonable attorneys' fees to be allowed to the plaintiffs by the Court; and 4, That the plaintiffs have such other and further relief as is just and proper. ROSENMAN COLIN KAYE PETSCHEK & FREUND Attorneys for Plaintiff Columbia Broadcasting System, Inc. Office and Post Office Address 575 Madison Avenue New York, New York 10022 By £¢ a a. Sako y ge ro rm MARSHALL, BRATTER, GREENE, ALLISON ' . & TUCKER Attorneys for Plaintiff Calvada Produc- tions Office and Post Office Address New Yo aes ke TRA bleo a YS ALEXANDER & GREEN Attorneys for Plaintiff Jack Chertok Telévision, Inc. Office and Post Office Address 120 Broadway New York w York 1 eA a ie 2? Amended Complasnt GRAUBARD & MOSKOVITZ Attorneys for Plaintiff Dena Pictures, Incorporated Office and Post Office Address 4O Wall Street New Pree: ore York 10005 By ¢ ¢ = id t Gur harnet aber 0 29a Amended Answer UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK wo soem woecec owe oo ons Oeteietetetene” 4 «© COLUMBIA BROADCASTING SYSTEM, INC., : CALVADA PRODUCTIONS, a joint venture, . JACK CHERTOK TELEVISION, INC. and re CONLEY ELECTRONICS CORPORATION, : Defendants Teleprompter Corporation and Coaley Electronics Corporation by their attorneys answer the amended complaint herein at follows. (The rermbers of paragraphs of Pari I of this amended answer correspond to the numbered paragraphs of the amended complaint.) I. . 1. Admit that plaintiffs purport to invoke the jurisdiction of the Court on the basis of the statutes referred to in paragraph 1 of the amended complaint. Except as so stated, defendants deny each and every allegation of paragraph | of the euncofiet eumginiat. 2.-5. Deny knowledge or information sufficient to nee belief as to the allegations of paragraphs 2 through 5 of the amended complaint. : 6. Admit that Teleprompter Corporation is a New York corporation with offices in New York, New York. 4 7. Admit that Conley Electronics Corporation is an Dlinois corporation, authorized to do business in the State of New York with a Amended Answer offices in New York, New York and is a wholly-owned subsidiary of Teleprompter Corporation. | gt _ 8 Deny knowledge or tnformesion sufficient to form a belief as to the allegations of paragraph 8 of the amended complaint. 9. Defendant Teleprompter Corporation denies each and every allegation in paragraph 9 of the amended complaint. Defendant Teleprompter Corporation denies that it does, or at thé time of the acts complained did, own or operate any community antenna systems ise television reception except that defendant Teleprompter’ Corporation admits that it owns all of the capital stock in separate corporations, including defendant Conley Electronics Corporation, which own and operate 14 community antenna systems for television reception and } less than all of the steck in two other corporations which each respec- : tively own and operate @ community antenna wpeten for television ; reception; these community antenna systems for television reception are located in various parts of the United States, including the State of New York, and such systems have in the aggregate approximately 55, 000 subscribers. Defendant Conley Electronics Corporation denies each and every allegation in paragraph 9 of the amended complaint except that it admits that it owns and operates community antenna systems for RE OE eon an : television reception in Elmira, New York, Horseheads, New York, Johnstown, Pennsylvania, Farmingtoh, New Mexico, Silver City, New Mexico, Rawlins, Wyoming, Liberal Kansas, Eugene, Gregon, Springfield, Oregon and Santa Cruz, California. ? ; H t ' ‘ ! ; 10. Deny each and every cilegation in paragraph 10 of the = = TST VS 2s 2. aR wees tr SSO STs err Sa 3la Amended Answer impossible without an antenna system, and that all antenna systems con! sist essentially of an antenna and equipment connecting it to the television receiver. A community antenna system for television recep-| - tion provides a connection to its subscribers from favorably-placed enteanes of the system, and serves the same function as any other antenna system. The antennas owned by the separate corporations, the stock of which corporations is owned in whole or on nnd he detain Teleprompter Corporation and the antennas owned by defendant Conley Electronics Corporation as alleged in paragraph 9 hereof, and connect- ing equipment utilized to connect these antennas to the television receivers purchased and owned by and situated on the premises of the system's subscribers, are analogous o= similar to the antennas and connecting equipment utilized by other owners of television receiving sets. These community antenna systems do not alter, penta) modify, add to or delete broadcast information telecast from television stations, but merely make available for their subscribers a connection to the community antenna system so that the subscriber is able to use the antenna system to receive on subscriber's television set the broadcast information telecast by the stations. 1. Defendant Teleprompter Corporation denies each and every allegation of paragraph 11 of the amended complaint except that defendant Teleprompter Corporation admits that subscribers of the separate corporations weferred to in paragraph 9 hereof are permitted to conndct the antennas to the subscriber's set upon payment of a . 4 connection fee and a monthly maintenance charge, and that the separate oS oF — Fe i a ee ee ee Amended Answer corporations owning and operating these systems are business enter- prises conducted for profit, and that defendant Teleprompter Corporation is a business enterprise conducted for profit. Defendant Conley Electronics Corporation denies each and every allegation of paragraph 1: of the amended complaint except that defendant Conley Electronics Corporation admits that subscribers) of aPaycrems referred to in paragraph $ hereof are er connect the antennas to the subscriber's set upon payment of a connec; tion fee and a monthly maintenance charge, and that defendant Conley Electronics Corporation is a business enterprise conducted for profit. FIRST CLAIM 12. Repeat their answers contained in paragraphs | 7 il above as if fuily sect out hereia. 13.-17. Deny knowledge or information sufficient to form a belief as to the allegations of paragraphs 13 through 17 of the amen- ded complaint. 18.-20. Deny each and every allegation of paragraphs 18 through 20.0f the amerded complaint. SECOND CLAIM 21. Repeat thei> answers contained in paragraphs 1 through ll above as if fully set out herein. 22.-26. Deny knowledge or information sufficient to form a belief as to the allegations of paragraphs 22 through 26 of the amen- ded complaint. - 27.-29. Deny each and every allegation of paragraphs 27 through 29 of the armmendec complaic:t. a through 71 of the amerded complaint. EIGHTH CLAIM 72. Repeat their answers contained in paragraphs | through = 1) and 64 above as if fully set out herein. 73.-76. Deny knowledge or information sufficient to form a belief as to the allegations of paragraphs 73 through 76 of the amended . complaint. 77.-79. Deny cach and every allegation of paragraphs 77 through 79 of the amended complaint. ge “WSS Bra: Baer eae ese SUSU. 35a Amended Answer 3 aa “NINTH CLAIM _ 80, _ Repeat their answers ceutainad in paragraphs 1 through 11 an 64 hice ub 8¢ Silty diab tnd aca. x 81.-84. Deny knowledge or information sufficient to form a belief as to the allegations of paragraphs 81 through 84 of the amended complaint. ney 85.-87. Deny each ard every allegation of paragraphs 85 Pd through 87 of the amended complaint. ’ TENTH CLAIM 88. Repeat their answers contained in paragraphs | through 11 above as if fully set out herein. ; 89.-93. Deny knowledge or information sufficient to form a belief as to the allegations of paragraphs 89 through 93 of the usneniied complaint.” 94.-96. Deny each and every allegation of paragraphs 94- through 96 of the amended complaint, ELEVENTH CLAIM 97. Repeat their answers contained in paragraphs | through 11 and 89 above as if fully set out herein. 98.-101. Deny knowledge or information sufficient to form a belief as to the allegations of paragraphs 98 through 101 of the amended complaint, 102, -104, Deny each and every allegation of paragraphs 102 through 104 of the amended complaint. ‘ - i : ° : au) | known of and participated in the custome, practices and uanges in he television industry developed and in exietenct since the inception of the industry relating and devoted to increasing the viewing audience by various means and methods, including reception by members of the pune whe elect to subscribe to community antenna systems, and have consented to and encouraged, and accepted the bene- fits of, the growth of the community antenna industry and the increased reception resulting therefrom, including reception by members of the public who are subscribers to the community antenna be eels referred to in paragraph 9 hereof. : = (iv) committed the acts alleged in paragraph (d) of this section, which are here realleged as if set forth in full. . (f) Plaintiffs Calvada, Chertok and Dena agreed to per- mit or authorize plairtiff CBS to transmit the programs referenced in the Fourth through Twelfth Claims to its affiliates for telecast by plain- tiff CBS and its affiliates for reception by the public, and plaintiff CBS by agreement with its afhliates transmitted the programs referenced in the First through Third Claims to its affiliates for telecast by them for equence of such agreements and the | reception by the public. As a cons custom and usage of the industry members of the public who are sub- — stribers to the community antenna systems in Elmira, New York, Johnstown, Pennsylvania, and Farmington, New Mexico, as’ well as elsewhere; are licensed in fact or in law and entitled to receive such telecasts by means of such antenna systems, and the separate corpora~ tions owning these antenna systems are licensed in fact ‘or,im law to furnish to their subscribers a connection to their antenna systems for such reception by subscribers.- Amended Answer Iv. gzerete Defenses ofMisuseof ) By agreeing and conspiring among themselves and with others unknown to defendants to enter into agreements with spon- } sors on advertisers with respect to the program in which plaintiffs claim copyright only on condition that the sponsors or advertisers con- tract with plaintiffs for other programs telecast by plaintiff CBS and its affiliates. (c) By tying the contractual right to telecast the programs referred to in the amended complaint, along with others, to - 146- tren only ior spactic sogments of ouch time, jd a aialein by tying sponsor's or advertiser's right to contract for specific segments of | brondeast time on the CBS network to having contracted with CBS for | such programs. i = iui. 5 agrsing snd coteplsng among Semanves a with éthers unknown to defendants not to license programs and not to grant the contractual right to telecast the programs, including but not Limited to the alleged copyrighted programs mentioned in the amended complaint, to sponsors and advertisers except through plaintiff CBS. (e) By agreeing and conspiring among themselves and- | with others, including the producers of the programs referred to in the amended complaint, to limit use, enjoyment, distribution, reception Vand viewing of said programs by attempting to require affiliated stations to limit or prevent reception of telecasts by members of the public who rMubscribers to an antenna system for television reception referred . toin — 9 hereof. (f) By agreeing and conspiring among thems elves and : with others, including affiliates of CBS, to limit or prevent the recep- tion by —— of the public who elect to secure an antenna system for cmaialas by subscribing to a community antenna service, including those who are subscribers to an antenna service referred to in para- graph 9 hereof for the purpose of controlling the business of those cor- ‘porations lawfully engaged in making such antenna service gvailable to members of the public who elect to subscribe to the said community antenna systems. . telecast by plaintiff CBS or its affiliated stations which were telecasting ——~- ° = "dhl EPS Tee! SOT ET STE Ae 2 i as ee ee ee te for facilities or for programs, or its licensing of programs from a 4 118, . Plaintiff CBS has misused the copyrights referred to in the amended complaint, along with others, {a) by agreeing and conspiring with sponsors or adver- tisers and with others unknown to defendants that no product competitive with that of the sponsor or advertiser shall be advertised through a the alleged copyrighted programs, during, and within specified periods before or after, the telecast of such programs. ° (b) by agrociig and conspiring with affiliates that no product competitive with that of the sponsor or advertiser shall be ad- vertised through a telecast by agsliatea stations telecasting the alleged copyrighted programs, ouvien and within specified periods before or after the telecast of such programs. 119. Plaintiff CBS has misused the copyrights in the programs referred to in the arnended complaint, along with others, by engaging in courses of conduct including, but not limited to, the following: (a) By tying its agreement with sponsors or advertisers conan producer, to the granting to plaintiff CBS by such advertiser or sponsor or programm producer of control over production and con- tent of the ponguens and in merchandising or subsidiary rights together ' with participation in the profits from such production and rights. (b) By refusing to deal with pe. gredacere ona basis other than an exclusive license for or right to the distribution of said programs for reruns or syndication for television, or transfer of outright ownership of, or exclusive rights in, the copyright to plaintiff ’ ® ‘ t : Seu 47a Amended Answer CBS, or the granting of» prticiption in the profit of such reruns oF ; syndication by plaintiff CBS. {c) By requiring sponsors or advertisers to onder a list of atBliates which exceeds the numberof fila euch sponsor ot ad- vertiser might otherwise order if not so required, The relief prayed for in the amended — must therefore be denied and the eeKtsded complaint dismisses. Sere BS 28: The preceding paragraphs numbered 117 through 119 con- _ | stitute separate and independent defenses in that the acts and/or courses of conduct alleged, separately or in combination constitute misuses of | copyright, and, in addition, constitute unreasonable restraints of trade : in violation of Section 1 of the ghesisinn Act (15 U.S.C. §1). Said courses of conduct, emong others, in conjunction with said agreements 5 by plaintiff CBS, also constitute a conspiracy to monopolize and an f | | atternpt to monopolize the television industry and the production, dis- tribution and sale of ‘maine programs, and to maintain the unlawful & and restrictive system of nationwide program distribution by the tele- , vision networks, in violation of Section 2 of the Sherman Act (15 U.S.C. p $2); and constitute requirements for exclusive dealing in violation of Section 3 of the Clayton Act (15 U.S. c.$14). Menrsremmes ners ena. & V. Separate Defenses of Misuses of Copyzichts end Unclean Hands 121. The courses of conduct to control and to dominate the television industry including reception as set forth in this amended answer, turns on the plaintiff CBS's control and wee Ere of copyrights. Itis by means ae through the device of cnqenitiigs accumu lating and monopcli zing copyrights and subsidiary rights that plaintiff » $94 ar ee CBS soeks.to accomplish its anti-competitive objectives akduaaied. monopolizing and controlling the television industry. By acquiring, : accumulating and monopolising copyrights the plaintiff CBS seeks to con- trol reception in the home through the device of dominating and exer- cising control over the business of providing antenna service to the pub- lic. The antenna service euch as that referred to in paragraph 9 hereof enables members of the public to receive on their own television receivers in their own premises programs telecast for pyblic reception by television station icendese in accordance with the Communications Act of 1934 as amended. The business of providing oth cxtenan period pe neare of the public is lawful and proper and the attempt to use } copyrights to control such business is an unlawful extension of copyright and since plaintiffs seek such extension of copyright, they are not en- titled to relief prayed for in the amended complaint 122. Plaintiff CBS, in participation with other plaintiffs, comes before the Court with unclean hands in that it has attempted, and by this suit is attempting, to extend the limited monopoly conferred by copyright, and to monopolize and control copyrights to the end that by f t ails of such monopolization and control, and by monopolization and control of broadcast time of television station licensees, and monopoli- zation and control of television program production and distribution, it may further control, restrain, dominate and monopolize the entire television broadcast process, including program production, broadcast- LTS Se PPS TS ee ing, advertising and reception of television programs in the homes all contrary to public policy. Therefore plaintiffs have no standing in this Court and may not recover. Amended Answer VL. No Relief Against Defendant _ ones 123. vecbesics tdladncakas Coun tee einen weet she time of the acts complained of, did pot, own or operate aay comene-| c couLocnn oie Sonne ae alleged in the amended complaint justifying equitable or other relief against defendant Teleprompter Corporation. WHEREFORE GREE Sap Sea iienste amended complaint herein and for costs and attorney's fees and for such other and farther reliefs to this Court may seem just and proper, Dated: New York, New York : : : KATZ, MOSELLE & SCHIER April 26, 1966 ’ Attorneys for Defendants Teleprompter Corporation and Conley Electronics Corporation ‘Office and Post Office Address 608 Fifth Avenue : New York, New York 10020 By /S/ Walter C. Schier A Member of the Firm - Of Counsel: SMITH & PEPPER Office and Post Office Address 110i 17th Street, N. W. Washington, D. C. CLEARY, GOTTLIEB, STEEN & rast ser mage Office and Post Office ee 1250 Connecticut Avenue, N. W. Washington, D. C. 20036 SS OL, SES OSS SE ae UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK COLUMBIA BROADCASTING SYSTEM, INC., CALVADA PRODUCTIONS, a joint venture, JACK CHERTOK TELEVISION, INC. and DENA PICTURES, INCORPORATED, ~_— Plaintiffs, CC see ~against- TELEPROMPTER CORPORATION and CONLEY ELECTRONICS CORPORATION, Defendants. 64 Civ. 3614 Plaintiff, Columbia Broadcasting System, Inc., by its attorneys, Rosenman Colin Kaye Petschek Freund & Emil, for its complaint supplementing the amended complaint herein alleges as follows: FOR A THIRTEENTH CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF CBS 113. Plaintiff CBS repeats and realleges each and every allegation contained in paragraphs 1, 2 and 6 through 11 of the amended complaint. 114. Plaintiff CBS has created and produced an origi- nal series of television programs entitled "Hawaii Five-O"; an adventure series. 115. Prior to June 4, 1969, plaintiff CBS originated, created and produced a program in the “Hawaii Five-O" series entitled "Hawaii Five-O (Pilot) (680920)", also known as "Cocoon". This program is a motion picture and a dramatic Sla Supplemental Complaint work, contains a large amount of material wholly original, and is ‘copyrightable subject matter under the laws of the United States. = eh +. 116. Plaintiff CBS complied in all respects with Title 17, United States Code.and all other laws governing copy- rights, secured the exclusive rights and privileges in and to the copyright of said program, and received from the Reg- ister of Copyrights a certificate of registration identified as follows: Classes I-M, No. Ip 36819, dated June 23, 1969. It is not physically feasible to attach a copy of said pro- - gram to this complaint, but a copy will be made available to the Court when required. 4. 117. At the time of the infringement hereinafter men- tioned, plaintiff CBS was and still is the sole proprietor of all right, title and interest in and to the copyright described in paragraph 116, supra, including the exclusive right to publicly perform, exhibit, represent, produce, re- produce and copy said program. 118. On June 4, 1969, CBS transmitted the first half ("Part I") of the aforesaid program to its affiliates and owned stations and, on the same date, CBS affiliates and CBS owned stations, including its station in New York, New York, broadcast the aforesaid program. The aforesaid program was broadcast on a delayed basis by the CBS affiliates in Denver, Colorado and Albuquerque, New Mexico on June 6, 1969 4. - and June 7, 1969, respectively. 119. On June 4, 1969 in New York, New York, on June 6, ? — 1969 in Rawlings, Wyoming, and on June 7, 1969 in Farmington, New Mexico, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhibited, represented, . produced, reproduced and copied the aforesaid program by distributing it to its. many subscribers in New York, New York, in Rawlings, Wyoming and in Farmington, New Mexico, among other places presently unknown to CBS, by receiving, reproducing and distributing signals emitted by the said CBS owned stations and affiliates, including the owned station in New York City, and affiliates in Denver and Albuquerque. 120. By these acts, defendant Teleprompter and/or Conley, without license or authority from plaintiff CBS, in- fringed the copyright referred to in paragraph 116, supra. 121. By reason of such infringements, plaintiff CES has sustained substantial injury and damage, and unless this Court permanently restrains the defendants from further com- mission of said acts, plaintiff CBS will suffer irreparable injury for which plaintiff CBS has no adequate remedy at lew. FOR A FOURTEENTH CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF CBS 122. Plaintiff CBS repeats and realleges each and every étiagation contained in paragraphs 1, 2 and 6 through 11 of the amended complaint. 123. Desilu Productions, Inc. (hereafter "Desilu"), a corporation organized and existing under the laws of the State of California, created and produced an original series -|- of television programs entitled "I Love Lucy", a comedy series. Joh. Prior to May 13, 1969, Desilu originated, created and produced a program in the "I Love Lucy" series entitled “Mme Black Wig". This program is & motion picture and a ~ dramatic work, contains a large amount of material wholly original, and is copyrightable subject matter under the laws of the United States. Sa 125. Desilu complied in all respects with Title 17, United States Code and all other laws governing copyrights, secured the exclusive rights and privileges in and to the copyright of the said program, and received from the Regis- ter of Copyrights a certificate of copyright registration - identified as follows: Classes L-M, No. Lp 21287, dated Fepruary 8, 1962. It is not physically feasible to attach a copy of said program to this complaint, but a copy will be made avaliable to the Court when required. 126. Thereafter, and aaah. to May 13, see. by agree- t ment in writing between Desilu and CBS, Desilu for valuable consideration assigned said copyright to CBS. At the time | of the infringement hereinafter mentioned, plaintiff CBS was and still is the sole proprietor of all right, title and in- terest in and to the copyright ‘described in paragraph 125, ) supra, including the exclusive right to publicly perform, j exhibit, represent, produce, reproduce and copy said program. - 127. Thereafter, and also prior to May 13, 1969 KHQ | ! : Incorporated, for valuable consideration, was granted a oe ae 54a Supplemental Complaint license to broadcast said program over the facilities of ¥ television station KHQ-TV, Spokane, Washington. 128. On May 13, 1969, KHQ-TV, Spokane broadcast the: aforesaid program. 129. On May 13, 1969, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhib- | ited, represented, produced, reproduced and copied the afc ‘said program by distributing it to its many “subscribers ir Great Falls, Montana, among ‘other places presently unknowr . to CBS, by receiving, reproducing and distributing signale . emitted by KHQ-TV, Spokane. | 130. By these acts, defendant Teleprompter and/or Conley, ‘without license or authority from plaintiff CBS, fringed the copyright referred to in paragraph 125, supra 131. By reason of such infringements, plaintiff CBS has sustained substantial injury and damage, and unless t Court permanently restrains the defendants from further c mission of said acts, plaintiff CBS will suffer irreparab . injury for which plaintiff CBS has no adequate remedy at law. FOR A FIFTEENTH CLAIM FOR RELIEF - ON BEHALF OF PLAINTIFF CBS - 132. Plaintiff CBS repeats and realleges each and every allegation contained in paragraphs 1, 2 and 6 tnrov : 11 of the amended complaint and paragraph 123 of this sur plemental complaint. A 5Sa Supplemental Complaint 133. Prior to June 6, 1969, Desilu Desilu originated, created — and produced @ program in the "I Love Lucy" series entitled "tucy Learns To Drive" . This program is a motion picture and a dramatic work, contains a large amount of material wholly original, and is copyrightable subject matter under the laws of the United States. : 134. Desilu complied in all eampaahe with Title 17; United States Code and all other laws governing copyrights, secured the exclusive: rights and wriytieges in and to the copyright of the said program, and received from the Regis- ter of Copyrights a certificate of copyright registration identified as follows: Classes L-M, No. Ip 22403, dated July 30, 1962. It is not physically feasible to attach a copy of said program to this complaint, but a copy will be made available iv the Court when required. 135. Thereafter, and prior to June 6, 1969, by agree- ment in writing between Desilu and CBS, Desilu for valuable consideration assigned said copyright to CBS. At the time of the infringement hereinafter mentioned, plaintiff CBS was } | and still is the sole proprietor of all right, title and in- ; : terest in and to the copyright described in paragraph 134, : supra, including the exclusive right to publicly perform, ~ 5 S ‘. » granted a license to broadcast said program over the facili- ties of television station KBTV, Denver, Colorado. » exhibit, ee produce, reproduce and copy said pro- 136. Thereafter, and also prior to June 6, 1969, ee ee aN mre ee er ee enw Mullins Broadcasting Co., for valuable consideration, was ee ee i S6a Supplemental Complaint 137. On June 6, 1969, KBTV, Denver broadcast the afore-| said program. 138. On June 6, 1969, defendant Teleprompter and/or Conley, directly or indirectly, publicly performed, exhib- ited, represented,- produced, reproduced and copied the afore- said program by distributing it to its many subscribers in Rawlings, Wyoming, among other places presently unknawn to CBS, by receiving, reproducing and distributing signals emitted by KBTV, Denver, Colorado. . 139. -By these acts, defendant Teleprompter and/or Conley, without license or authority from plaintiff CBS, in- fringed the copyright referred to in paragraph 134, supra. 140. By reason of such infringements, plaintiff CBS has sustained substantial injury and damage, and unless this Court permanently restrains the defendants from further com- mission of said acts, plaintiff CBS will suffer irreparable injury for which plaintiff CBS has no adequate remedy at law. . WHEREFORE, plaintiff CBS demands judgment: 1. That defendant Teleprompter and/or Conley, its agents, servants, subsidiaries, and all persons acting under its direction, control, permission or licenbe, be enjoined during the pendency of this action and permanently from in- fringing the aforesaid~copyrights in“any manner; 2. That defendants be required to pay such damages as plaintiff CBS has sustained in consequence of defendants' said unlawful acts, but in no event less than Two Hundred Fifty ($250.00) Dollara for each infringement 3. That defendants pay to plaintiff CBS the cost of this action, and reasonable attorneys' fees to be allowed to plaintiff CBS by the Court; and 4, That plaintiff CBS have such other and further re- lief as is just and proper. Attorneys for Plaintiff Columbia Broadcasting System, Inc. Office and Post Office Address 575 Madison Avenue New York, New York 10022 58a Supplemental Complaint UNITED STATES DISTRICT COURT Plaintiffs, prigp ld ~against- a ges 64 Civ. 3814 - TELEPROMPTER CORPORATION and CONLEY ~~ ELECTRONICS CORPORATION, - ) Plaintiffs seck to create a monopoly and extend their control over r the provision of community antenna services. Defendants aver that plaintiff CBS, in order to preserve at extend its present system of nationwide program distribution and network in control of local broadcasting stations, seeks by this action to control, its discretion, the availability of rapid and efficient — service to to the policies of the Communications act and in deroga- the public sabes tion of the lawful authority of the Federal Communications Commission. Plaintiff CBS, through the device of acquiring, accumulating, and mono- subsidiary rights, is seeking to use copyrights as @ polizing copyrights and private regulatory device to influence the location of and to fix the areas r zones to be served by television broadcasting stations through control members of the public electing of the reception of television broadcasts by be to community antenna television systems, to limit experimental to subscri applications of broadcasting and reception technology designed to permit re effective use of television, and to prescribe the nature of larger and mo the services to be rendered by television broadcasting stations and community antenna television systems. . Iv. Separate Defenses Under the Copyright Laws and Related Defenses 6 16. Each of the separately lettered sections of this paragraph states a separate and independent defense: “See, “Answer to Supplemental Complaint and Supplemental Answer (a) Defendants repeat and incorporate herein as if fully set forth the separate defense of paragraph 115(a) of the amended answer, thereby averring that the programs referred to in the supplemental complaint are in the public domain and unprotected by copyright. (b) Defendants repeat and incorporate herein asif - folly set forth the separate defense of paragraph 115(b) of the amended answer and further aver that the copies of the programs deposited w ith the Register of Copyrights did not include the entire program furnished to the television stations referred to in the supplemental complaint by plain- tiff CBS for telecast by said television stations within the time period ° within which said sibiiees was telecast. (c) Defendants repeat and incorporate herein as if fully set forth the separate defense of paragraph 115(c) of the amended answer and further aver that Desilu Productions, Inc., has committed the acts or engaged in the conduct therein denniinen: * (a) Defendants repeat and incorporate herein as if fully set forth the mi coeoate defense of ret 115(d) of the amended answer as agplicenes to the community autenna television aetna eimai to in the supplemental complaint that were constructed and acquired prior to December, 1964, by defendant Conley or the separate corporations whose stock is owned in whole or in part by defendant Teleprompter. (ce) Defendants repeat and incorporate herein as if Lally set forth the separate defense of paragraph 115(e) of the amended anawee and further aver that plaintiff CBS has waived and acquiesced in and is estopped from asserting any and all copyright infringements by reason of 67a Answer to Supplemental Complaint and Supplemental Answer entering into copyright licensing agreements and negotiating license fees with the television stations referred to in the supplemental compiaint and ; ba _ : \ accepting the benefits thereat. ————--— == NN {f) Defendants repeat and incorporate herein as if fully set forth the separate defense of paragraph 115(f) of the amended answer and further aver that plaintiff CBS by agreement with television aeikile. referred to in the supplemental complaint provided the sovigeeons as to which copyright infringement is alleged to such stations fox entecast by them for reception by the public and that, as a ectinabenlnist: the sub- scribers to the community antenna systems referred to in the supplemental complaint are licensed in fact or in law to receive such telecasts by means of such antenna systems and the separate corporations owning these antenna sytems are licensed in fact or in law to furnish to their subscribers a connection to thei¢ antenna sytems for such reception by subscribers. Vv. Separate Defenses of Misuse of Copyright 17. Defendants repeat and incorporate herein as if fully _ set forth the separate defenses of paragraphs 116 through 119 of the amended ‘sitiblins Defendants further aver that Desilu Productions, Inc., has mis- used the copyrights referred to in the supplemental complaint by engaging in courses ot conduct including, but not limited to, those described in paragraphs 116 through 119 of the amended answer, particularly by agreeing and conspiring with others, including plaintiff CBS, for the purpose of controlling the business of those corporations lawfully engaged in making community antenna service available to members of the public who elect ~ _ Answer to Supplemental Complaint and Supplemental Answer to subscribe to the community antenna television systems. 18. Upon information and belief, defendants aver that plaintiff CBS and/or Desilu Productions, Se: i have misused the copyrights, if any, — in programs referred to in the amended and the supplemental complaint, by agreeing and conspizing between themselves and with others unknown to defendants to refuse to deal with television stations not affiliated with CBS except through plaintiff CBS and on the condition that such flevision sta- tions acquire from plaintiff CBS rights to telecast more‘than a single program or enter into agreements with respect to other programs in which plaintiff CBS claims copyrights (commonly known as "block booking"), and to ver such television stations to limit or prevent reception of tele- casts by members of the public who are subscribers to community antenna television systems. 19. Defendants repeat and incorporate herein as if fully set forth the separate defenses of paragraph 120 of the amended answer, thereby averring that the courses of conduct of plaintiff CBS, Desilu Productions, Inc. and/or the television stations referred to.in the gupplemental complaint, . separately or in combination, constitute misuses of copyright; and, in addition, constitute unreasonable restraints of trade and requirements for exclusive dealing and a conspiracy and an attempt to monopolize the tele- ‘eta industry and to maintain the unlawful and restrictive system of nationwide program distribution by the television networks, all in violation ~ of the antitrust laws. 69a Answer to Supplemental Complaint and Supplemental Answer Vi - ate Défenses of Misuses of Copyrights and Unclean Hands 20. Plaintiff CBS comes before this Court with unclean hands. Defendants aver, on information and belief, that plaintiff CBS and/or its subsidiaries and divisions has acquired and now owns, oT owned at the time of the acts complained of, numerous meloaialit antenna tele- vision systems or all or part of the stock therein. Defendants inte, on information and belief, that jane or all such community antenna television eyvteian perform a function and provide services identical to the function performed and services provided by the community antenna television systems referred to in the supplemental complaint, that the television broadcasts received by such community antenna television systems include broadcasts of copyrighted materials; and that such éutabmanitey antenna selevision systems do not pay or otherwise compensate the owners of such copyrighted programs in any manner.- By engaging in and by permittin the community antenna television systems referred to herein to engage in such course of conduct and business and by accepting the benefits thereof, plaintiff CBS shall not be heard to assert the claims contained in the supplemental complaint and has no standing in this Court. Therefore, the relief eal in the supplemental complaint must be denied and the swpple- mental complaint dismissed. 21. Defendants repeat and incorporate herein as if fully set forth the separate defenses of paragraphs 121 and 122 of the amended answer, thereby averring that plaintiff CBS comes before this Court with Aacaar te Subplemaual Comlalt wal Supplemental Answer unclean hands in that plaintiff CBS, in participation with others, seeks by this action to further control, restrain, dominate and monopolize the 3 entire television broadcast sbi including program production, broad- casting, advertising and reception of television programs in private homes by means of and through the device of acquiring, accumulating and mono- polizing copyrights and subsidiary rights contrary to law and public policy. vi. aa. * No Relief Against Defendant Teleprompter Corporation is Justified * 22. Defendant Teleprompter Corporation does not now, and at the time of the acts complained of did not, own any community antenna systems for television reception, and no facts are shown Sed alleged in the supplemental complaint satin €quitable or other relief against defendant Teleprompter Corporation. WHEREFORE, defendants pray for judgment dismissing the supplemental complaint herein and for costs and attorney's fees and for such other and further relief as to this Court may seem just and proper. Dated: New York, New York "January 30, 1970 KATZ, SCHIER, ROSENSWEIG & SINDLE Atforneys for Defendants Teleprompter Corporation and Conley Electronics Corporation Office and Post Office Address 437 Madison Avenue es . : New York, New York 10022 . Pe. ‘ By on ot ACE ie oA ed A Member of the Firm Of Counsel: Robert C. Barnard, Esq. R. Michael Duncan, Esq. CLEARY, GOTTLIEB,STEEN & HAMILTON Plaintiffs' motion for separation of issues for trial having been heard, a proposed order agreed upon between the parties having been submitted, and due deliberation having been had, IT IS ORDERED THAT I. Separation for Trial The trial of this case shall be divided into stages, first stage to be the determination of the basic issue of copyright infringement and certain defenses as set forth | below in paragraph Il hereof. II. First Stage -——- sssnamnsi of the Basic Issue t . ; : The basic issue to be tried in this stage of the case whether there is an infringement of copyright within the meaning of 17 USC §§ 1(c) and (4) by reason of the reception, | their claims of infringement against defendants resultir _ |] Rowever, any allegations therein of violations of the anti~ | trust laws, may be related to the issue of copyright infringe! | ment, the Communications Act defense and to the defense of license implied in law and shall be included in the first | stage. | the defendants at subsequent stages of the trial, plaintiffs transmission of and making available (and/or other activities as specified in paragraph IV hereof, if any, in relation to) telecasts of plaintiffs' copyrighted programs by means of CATV systems in Elmira, New York, and Farmington, New Mexico, im November 1964, as alleged in the Amended Complaint, and ~ the CATV systems in Farmington, New Mexico, Rawlins, Wyoming, Great Falls, Montana, and New York, New York, in June 1969, as alleged in the Supplemental Complaint. Paragraph 1 of the Answer to Supplemental Complaint and Supplemental Answer is related to the issue of copyright infringemeit and shall be included in the first stage. The defendants' separate defenses stated in paragraph 113 and 114, and 115(f) of the | Amended Answer and 14 and 15, and 16(f) of the Answer to Supplemental Complaint and Supplemental Answer, excluding, , Without prejudice to defenses that may be asserted by are, for the purpose of this first stage of the trial, assume¢ to have been the owners of valid copyrights in the - copyrighted works broadcast by the television stations as alleged in the Amended Complaint and Supplemental Complaint, some of which copyrighted works are photoplays and others Of which are not photoplays. : TTI. Elimination of Certain Matters from the Pleadings A. Plaintiffs have agreed to the dismissal of Pretrial Order Number One trom the activities in November, 1964 of the Johnstown CATV system. Accordingly, the Sixth Claim for relief on behalf — of plaintiff CBS and the Third Claim for relief on behalf of plaintiff Calvada (paras. 55-62 of the Amended Complaint), the Ninth Claim for relief on behalf of plaintiff CBS and the whird Claim for relief on behalf of plaintiff Chertok (pares. 80-87 of the Amended Complaint), and the Twelfth Claim for relief on behalf of plaintiff OBS and the Third Claim for welief on behalf of plaintiff Dena (paras. 105-112 of the amended Complaint), are hereby dismissed. ~ as to lack of ownership or control over the CATV systems in New York, New York, and Great Falis, Montana, as set forth in paragraphs 3 and 4 of the Answer to Supplemental Complaint and Supplemental Answer, and thése paragraphs are hereby stricken from said Answer. Iv. Plaintiffs! contentions nn A A. It 4s plaintiffs' legal contention that: The holding of Fortnightly Corp. v. United Artists Television, Inc., 392 U.8. 390 (1968), is not dispositive of the issues posed in case, and that the defendants, through the ‘operation of the above CATV systems, snerined the rights of plaintiffs under sections 1(¢) and 1(4) of the Copyright Act in receiving, transmitting and distributing telecasts of the copyrighted works referred to if the Amended and Supplemental Complaints because the nature and function of the CATV systems in this case differ from the nature and func- tion of the CATV systems in the Fortnightly case due to one or more of the following alleged activities of defendants' specified CATV systems relevant to the dates of the alleged infringements: (a) the origination of programming; (b) the origination and/or sale of advertising (¢) receipt, transmission and distribution of signals from television stations whose broadcasts because of distance do not otherwise reach viewers in the community which the CATV system serves, without employment of such means as a CATV systen|, translator, repeater; utilization of microwave or amplitude modulated link for transmission and dis- tribution of broadcast signals received off-the-air from television stations; (e) interconnection with other CATV systems. B. In the interest of simplifying the trial and narrowing the issues, plaintiffs have specified their con—- tentions, as herein contained, to be considered in the trial of the first stage of this case, with particular reference to facts which they believe distinguish the case from Fort~ |) Rightly Corp. v. United Artists Television, Inc., 392 U.S. | 390 (1968): Pretrial Order Number One £4. With respect to the alleged infringements hy the Katze CAPT ayoten An Hovesber 295%» ” praintitts contend that defendants infringed See 6 cae eae " qgnd 1(4). of the Copyright Act in receiving, ‘transmitting and distributing to the system's subscribers signals brosdeast by CBS television stations in Binghamton, Syracuse - and Buffalo, New York, and Scranton, Pennayi- vania, by resson of one or more of the follow- ing activities of the Elmira CATV system rele- vant to November, 1964: (1) receiving, transmitting and distribu- ting to the system's subscribers by use of microwave the programs broaficast by WPIX-TV, New York, New York (a non-CBS affiliate); (2) receiving, transmitting and distribu- ting to the system's subscribers rena containing plaintiffs' copyrighted works as broadcast from certain CBS affiliated television stations which broadcasts do not reach viewers in Elmira without de~- fendants' CATV system; (3) originating, transmitting and dis- tributing by means of the system's co to the system's subscribers thg signals of educational programs produced by the Pretrial Order Number One Elmira school board and transmitted by microwave by the school board to the system's antenna site; (4) originating, transmitting and dis- _tributing by means of the system's cables to the system's subscribers video weather information with a a of music. 2. With respect to the alleged. infringements by the Farmington CATV system in November, — 1964, plaintiffs contend that defendants infringed the rights of plaintiffs under sec- tions 1(c) and 1(d4) of the Copyright Act in receiving, transmitting and distributing to the system's subscribers signals broadcast by the CBS affiliated television station in Albuquerque, New Mexico, by reason of one or more of the following activities of the Parmink- ton CATV system relevant to November, 1964; (1) receiving, transmitting and distribut; ing to the system's subscribers programs containing plaintiffs! copyrighted works as broadcast by a CBS affiliate which broadcasts because of distance do not otherwise reach viewers in Farmington ‘without defendants' CATV system or outa : @ translator; (2) receiving off-the~air on its and transmitting and distributing to the Pretrial Order Number One aysten's subscribers programs containing plaintitfs' copyrighted works by means of microwave; (3) originating programs, transmitting end distributing them by means of the system's cables to the system's subscribe: ¢. With respect to the alleged infringements by the CATV systems in Farmington, New Mexico, Réwlins, Wyoming, Great Falls, Montana, and New York, New York in June, 1969, plaintiff CBS will, upon completion of its discovery as to such systems, submit to the defendants and the Court comparable s statement of its factual contentions as to each such system within the scope of the five specified activities) listed in paragraph IV-A above. D. pinintifts may seek leave of Court to amend or supplement the contentions set forth above in A within a reasonable time after completion of discovery and may amend or supplement without leave of Court any of their contentions set forth above in B within a reasonable time after — tion of discovery. — ‘y. Defendants' Contentions Fe - A. It is defendants’ contentions, in addition to ‘and in amplification of the paragraphs of 4ts Answers re- ferred to in paragraph II above, that: 1. The holding of Fortnightly Corp. v- united Artists Television, Ince, 392 U.S. 390 (1968) 4s dispositive of the issues posed in this cage because the function of the CATV systems _ referred to in the Amended and Supplemental _ Complaints at the time of the alleged infringe: “ments 414 not differ from the function of the CATV systems\in the Fortnightly case by reason “of activities alleged in subparagraphs (a) to (e) of paragraph IV-A. Defendants’ CATV systems merely enhanced the viewer's capacity to receive the signals of the television broadcast stations referred to in the Amended nd Supplemental Complaint by receiving and making available to subscribers the signals _ ©f such stations by means of a well-located antenna and an efficient connection by cable and/or microwave to the subscriber's tele- - vision set. Defendants! CATV systems dealt only with the broadcast signals, and not with plaintiffs! allegedly copyrighted programs and did not publicly perform plaintiffs! copy~ righted works within the meaning of Sections 1(e) and 1(4) of the Copyright Act. 2. There was a license implied in law under the Copyright Act and the Communications Act for public reception of broadcasts authorized by the copyright owner, which was not altered or impaired by activities of defendants' CATV systems alleged in subparagraphs (a) to (e) of paragraph IV-A. A broadcast for reception by the public may be received by the public 4 79a Pretrial Order Number One by means of its choice including CATV, and the practices of the television industry recognize sa that members of that public using these means : including CATV are in the coverage area of the * igtation, ‘The use by the public of defendants! ' _. Gary systems for reception of the broadcasts referred to in the Amended and Supplemental Complaint was protected by. the license implied - dn law. : af B. Defendants may seek leave of Court to amend or supplement the contentions set forth above in A within 4 reasonable time after completion of discovery. VI. Response to and Elaboration of Contentions The Court may, on application of a party or in the course of pretrial procedure, direct either party to respond to the contentions of the other or either party to amplify 4ts contentions in order further to simplify and delineate ; for trial the legal issues involved in the first stage. The : parties will be free to offer evidence with respect to their contentions in explanation or elaboration thereof. «oes VII. First Stage — Discovery The parties are directed to conduct discovery in prepar~ ation for trial of the first stage, with the understanding ‘that in the event plaintiffs are permitted to amend or ‘supplement the contentions set forth in IV-A or amend or supplement their contentions set forth in IV-B as fermitted in IV-D, defendants will have an additional opportunity to conduct discovery in the event an issue is raised upon which | defendants had not previously had a reasonable opportunity @iscovery, and with the further understanding that if defend~ ants amend or supplement their contentions set forth in V-A — as permitted by V-B, plaintiffs will have an additional opportunity to conduct discovery in the event an issue is raised upon whigh plaintiffs had not previously had a reason- able opportunity for discovery. All discovery relating to the issues in this case other than issues to be tried in the first stage shall be stayed pending further order following this Court's decision on the first stage of this case. Defendants are directed to permit an engineer and other personnel on behalf of the plaintiffs to visit and inspect the CATV systems and any related microwave facilities owned ly defendants or their subsidiaries in Rawlins, Wyoming, Farmington, New Mexico, Great Falls, Montana and New York, New York, at a time agreed to by the parties for discovery on behalf of plaintiffs. If plaintiffs will maintain at the trial of the first stage that defendants' CATV aystens are similar in function to any particular broadcasting station, they will so notify defendants within a reasonable time prior to trial so that defendant may arrange for an inspection, | Corlnce bln Pee. uy wy Dated this }% day of Og A 1970. 64 Civ. 3814 NOTICE OF ENTRY and COSLEY ELECTRONICS CORPORATION, : Defendants. $ SIRS: ° _ PLEASE TAKE NCTICE that the within is a true copy of an order entered at the office of the Clerk of the within Court on May 17, 1971. Deted: Mew York, New York May 18, 1971 Yours, etc. ROSD.2AN COLLIE | KAYE PETSCHEX eiwdrD & Ecad Attorneys for Cotes Broad- castine Sv - . t G. aeiie - a 4 OPS, o “he ae ‘i | - oes = ~- . . a@a.*.>, > 2X8 : ; _ 4 ¢ eee “SS very “8, 2 & - oS Cias S > ore 3. tw c . ‘ bad 42 - ae ‘ & . - a av pe a oy” lou | —— ' “= Slee wee rw ' bg . ~¢ » . ’ B | . : eae -% . ‘ ‘ - a > 7 ~« - ‘ - . é ” . — ee eee . JACK CHERTOK > INC. and : | DENA PICTURES, INCORPORATED, oe Plaintiffs, © 6% Civ. 3614 : TELEPROMPTER CORPORATION and CONLEY ELECTRONICS CORPORATION, : JOSEPH W. GELB, being duly sworn deposes and says that | deponent is not a party to the action, is over 18 years of | age and resides at 276 Riverside Drive, New York, New York. |mat on the 18th day of May, 1971, deponent served the within MARSHALL, PRATTER, CREENE, ALLISON & TUCKER 439 Park Avenve New York, New York 10022 120 Broadway Hew York, Wew York 10005 GRAUBARD, MCSXOVITZ, McCOLDRICK, WUTIETT & BOROWITZ 345 Park Avenve New York, New York 10022 at the above addresses desicnated by s2id attérneys for that | purpose by depositing same enclosed in a postpaid properly addressed wrapper, in an official depository under the ex- Clusive care and custody of the United States Post Office within the State of New York. Plaintiff, Columbia Broadcasting System, Inc., by its attorneys, Rosenman Colin Kaye Petschek Freund & Emil, for its complaint supplementing the amended and supplemental complaints herein alleges as follows: FOR A SIXTEENTH CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF CBS 141. Plaintiff CBS repeats and realleges each and : every allegation contained in paragraphs 1, 2 and 6 through | 12 of the amended complaint and paragraph 114 of the supple- mental complaint. 142. Prior to March 3, 1971, plaintiff CBS originated, , created and produced a program in the "Hawaii. Five-O" series : entitled "The Grandstand Play (Part I)". This program is a motion picture and a dramatic work, contains a large amount ' Of material wholly original, and is copyrightable subject * matter under the laws of the United States. e 143. Plaintiff CUS complied in all respects with Title . _-17, United States Code and all other laws governing copy- rights, secured the exclusive rights and privileges in and to the copyright of said program, and received from the Register of Copyrights a certificate of registration identi- fied as follows: Classes L-M, No. Lp 38780, dated March 15, 1971. It is not physically feasible to attach a copy of program to this complaint, but a copy will be made available to the Court when required. 14h. At the time of the infringement hereinafter men- tioned, plaintiff CBS was and still 4s the sole proprietor of all right, title and interest in and to the copyright described in paragraph 143, supra, including the exclusive right to publicly perform, exhibit, represent, produce, reproduce and copy said program. z 145. On March 3, 1971, CBS transmitted the aforesaid program to its affiliates and owned stations and, on the same date, CBS affiliates and CBS owned stations, including its station in New York, New York, broadcast the aforesaid program. The aforesaid program was broadcast on a delayed basis- by the CBS affiliate in Albuquerque, New Mexico on March 6, 1971. 146. On March 3, 1971, in New York, New York and on March 6, 1971 in Farmington, New Mexico, defendant Tele- prompter and/or Conley, directly or indirectly, publicly performed, exhibited, represented, produced, reproduced and copied the aforesaid program by distributing it to its many subscribers in New York, New York and in Farmington, New Mexico, among other places presently unknown to CBS, by receiving, reproducing and distributing signals emitted by i Second Supplemental Complaint the said CBS owned stations and affiliates, including the owned station in New York City and affiliate in Albuquerque. 147. By these acts, defendant Teleprompter and/or ' Conley, without license or authority from plaintiff CBS, infringed the copyright referred to in paragraph 143, supra. 148. By reason of such infringements, plaintiff has sustained substantial injury and damage, and unless this Court permanently restrains the defendants from. further com—" mission of said acts, plaintiff will suffer irreparable injury for which plaintiff CBS has no adequate remedy at law. FOR _A SEVENTEENTH CLAIM FOR RELIEF ON BEHALF OF PLAINTIFF CBS 149. Plaintiff CBS repeats and realleges each and every allegation contained in paragraphs 1, 2 and 6 through 11 of the amended complaint and paragraph 123 of the supple- mental complaint. 150. Prior to March 9, 1971, Desilu originated, created and produced a program in the "I Love Lucy" series entitled "The Camping Trip". This program is a motion pic- ture and a dramatic work, contains a large amount of material wholly original, and is copyrightable subject matter under the laws of the United States. : 151. Desilu complied in all respects with Title 17, . United States Code and all other laws governing copyrights, , Secured the exclusive rights and privileges in and to the ,. Copyright of the said program, and received from the Register > of Copyrights a certificate of copyright registration ; Second Supplemental Complaint G@entiried as follows: Classes L-M, No. Lp 24640, dated | April 17, 1963. It 4s not physically feasible to attach : copy of said program to this complaint, but a copy will be 4 made available to the Court when required. 152. Thereafter, and prior to March 9, 1971, by agree- I ment in writing between Desilu and CBS, Desilu for valuable | eonsideration assigned said copyright to CBS. At the time | of the infringement hereinafter mentioned, plaintiff CBS was ' and still is the sole proprietor of all right,-title and ! 4nterest in and to the ‘copyright described in paragraph 151, ; supra, including the exclusive right to publicly perform, , exhibit, represent, produce, reproduce and copy said program. 153. Thereafter, and also prior to March 9, 1971, 3 Metropolitan Broadcasting Television, a division of Metro- ' moda, Inc., for valuable consideration, was granted a . license to broadcast said program over the facilities of | television station KTTV, Los Angeles, California. 154. On March 9, 1971, KITV, Los Angeles, California broadcast the aforesaid program. 155. On March 9, 1971, defendant Teleprompter and/or * Conley, directly or indirectly, publicly performed, exhibited, represented, produced, reproduced and copied the aforesaid * program by distributing it to its many subscribers in Farm- E ington, New Mexico, among other places presently unknown to . CBS, by receiving, reproducing and distributing signals : emitted by KTTV, Los Angeles, California. 156. By these acts, defendant Teleprompter and/or " Conley, without license or authority from plaintiff CBS, pay ae hae “permanently restrains the defendants from further 4 Neammission of said acts, plaintiff CBS will suffer irrepar- able injury for which plaintiff CBS has no adequate remedy } at lew. : ’ WHEREFORE, plaintiff CBS demands judgment: 1. That defendant Teleprompter and/or Conjey, its | agents, servants, subsidiaries, and all persons acting under its direction, control, permission or license, be enjoined | suctan the ptiibinag! cit Whi cabin sak adhe : infringing the aforesaid copyrights in any manner; 2. That defendants be required to pay such damages as ; plaintiff CBS has sustained in consequence of defendants' said unlawful acts, but in no event less than Two Hundred and Fifty ($250.00) Dollars for each infringement; 3. That defendants pay to plaintiff CBS the cost of ' this action, and reasonable attorneys' fees to be allowed | to plaintiff CBS by the Court; and 4, That plaintiff CBS have such other and further F relief as is just and proper. . ROSENMAN COLIN KAYE PETSCHEK FREUND & EMIL Attorneys for Plaintiff Colum- _ bia Broadcasting System, Inc. Office arid Post Office Address 575 Medison Avenue’ New York, New York 10022 ' By Fes Zs. s,-4. gee J " er 0 URITZID STATIS DISTRICT Covar -“-*fenre er ee ge we ew ee wm wwenew kX 64 Civ. 3618 AFETDAVIT s Defendants. : -seferre rer rernreexzeenwxeweea aw sg STATE OF KEW YORK COUNTY OF KEW YORK ) > 88. ) JCSEPH W. GELS, being duly sworn deposes and says that deponent is not a party to the action, is over 13 years of age anc resides at 270 Riverside Drive, New York, Kew York. I That on the 18th day of May, 1S71, deponent served the within }Second Supplemental Complaint upon: - MARSHALL, BATTER, GRESAS, SLLISON & TUCKER 430 Park Avenue New York, New Yorx 10022 ALEXAZDER & GRasE 120 Broadway New York, New York 10005 GRAUSARD, MOSZOVITZ, ciccOLSRICK, DAIIUIT & LOROWI'TZ 345 Park Avenue Wew York, New Yor: 100ze yat the above addresses desicnsted by said sttorncys for that jpurpose by depositing same enclosed in a postpaid properly 93a Second Supplemental Complaint addressed wrapper, in an official depository under the ex- clusive care and custody of the United States Post Office within the State of New York. Answer to Second Supplemental Complaint UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK a ee ee ee Se OSS ee a oe COLUMBIA BROADCASTING SYSTEM, INC., CALVADA PRODUCTIONS, a joint venture, : JACK CHERTOK TELEVISION, INC. and DENA PICTURES, INCORPORATED, : 64 Civ. 3814 / Plaintiffs, i : 8 Answer to ~against- | Second Supplemental Complaint TELEPROMPTER CORPORATION and S ‘ ° CONLEY ELECTRONICS CORPORATION, Defendants Teleprompter Corporation and Conley Stectrentes Corporation, by their attorneys, answer the second cupplemental complaint herein as follows: I, . Failure to State a Cause of Action 1,+ The second supplemental complaint herein fails to state a cause of action on which relief may be granted and must be dismissed. " Defendants aver that the function of the community antenna television systems referred to in the second supplemental complaint is identical : to the function of the community an tenna alovtaliete systems in | Fortnightly Corporation v. United Artists Television, Inc., 392 U.S. 390 (1968), in that they all provide well located antennas with efficient 7 connections to the television sets of their subscribers, in order to enhance the viewers' capacity to receive the broadcasters' signals. | 2. The second supplemental complaint fails to state a cause of action on which relief may be granted to plaintiffs Celvada ~ 3. In answer to paragraph Idl of the second supplemental cmplabat, defendants Teleprompter and Conley repeat each and every enipwor contained tn pasagrashes 1, 2, rt hee ee answer and paragraph 6 of the answer to supplemental complaint and supplemental answer as if fully set out herein. 4. -Deny knowledge or information sufficient to form a belief . as to the allegations of paragraphs 142 through 145 of the second supplemental complaint. 5. Deny each and every allegation of paragraphs 146 through 148 of the second supplemental complaint. Semetunets Chain 6. In answer to paragraph 149 of the second supplement al _ complaint, defendants Teleprompter and Conley repeat their answer contained in paragraph 3 above, and in paragraphs 1, 2, and 6 through ll of the amended answer and paragraph 9 of the answer to supplemental complaint and supplemental answer as if fully set out herein. 7. Deny knowledge or information sufficient to form a belief as to the allegations of Sebastien! 150 ee 154 of the second ceppteealened cunagtitais’ ? a 8. Deny each and every allegation of paragraphs 155 through ' X 157 of the second supplemental complaint. Answer tv Second Supplemental Complaint — Seperate Defenses Under the Communications 9. With reepect to the allegations of the second supplemental | — a aver, repeat and niséputene herein as if fully oot ont their eipibate defenste and averments contained in paragraphs 113 and 114 of the amended answer and in paragraphs 14, 15(a) and 15(b} ofthe anewer to eupplemenial complaint and supplemental answer as i fully set out herein. IV. Foparate Defenses Under the Copyright ws and Related Defenses ’ 10. Each of the separately lettered sections of this paragraph states a separate and independent defense with respect to the allegations of the second supplemental complaint. (a) Defendants repeat and incorporate herein as if fully set forth the japawnte defense and averments of paragraph 115(a) of the amended answer and paragraph 1 6(a) of the answer to supplemental apianlilag and supplemental answer. (b) Defendants repeat-and incorporate herein as if fully set | forth the separate defense and averments of pavagraph 415(b) of the inanana answer and paragraph 16(b) of the answer to sasiadnennneh ; complaint and supplemental peta :. (c) " Defendants repeat and incorporate herein as if fully set forth the separate defense and averments of paragraph 115(c) of the amended answer and paragraph 16(c) of the answer to supplemental complaint and supplemental answer. 97a , Answer to Second Supplemental Complaint -. , (d) Defendants repeat and incorporate herein as if fully set forth the separate defense and averments of paragraph 115(d) of the amended answer and paragraph 16¢a) of the answer to supplemental ghailes and supplemental answer. (e) Defendants repeat and incorporate herein as if fully set forth the separate defense and averments of paragraph 115(e) of the amended answer and paragraph 16(e) of the answer to supplemental complaint and supplemental answer. (f) Defendants repeat and susenpnente paces as if fully set forth the separate defense and averments of paragraph 115(f) of the amended answer and paragraph 16(f) of the answer to supplemental complaint and supplemental answer. Vv. Separate Defenses of Misuses of Copyright 11. With respect to the allegations of the second supplemental complaint, defendants repeat and incorporate herein as if fully set forth the separate defenses and averments of paragraphs 116 through 120 of the amended answer and paragraphs 17 through 19 of the answer to supplemental complaint and supplemental answer.” St vi. Separate Defenses of Misuses of Copyrights and Unclean Hands © 12. With respect to the allegations of the second supplemental Sieg aeaee defendants repeat and incorporate herein as if talby set ' j Hy ” s ‘eu the scparate defenses and averments of paragraphs 121 and 122, of ‘Amended answer and paragraphs 20 and 21 of the answer to supplemental | ae and supplemental answer. Answer to Second Supplemental Complaint vil, No Relief Against Defendant Taleprommter Corporation is Justilied “13. With respect to the a supplemental complaint, Qntendnane repeat and incorporate herein as if fully set forth the separate defenses and averments of paragraph 22 of the answer to ougiglemnental complaint and supplemental answer. WHEREFORE, defendants pray for judgment dismissing the second supplemental complaint herein and for costs and attorney's fees and for such other and further releif as ta ihie Court may seem just and proper: Dated: New York, New York ° KATZ, SCHIER, ROSENSWEIG & SINDLE Attorneys for Defendants Teleprompter Corporation-end Conley Electronics Corporation Office and Post Office Address 437 Madison Avenue . New York, New York * 10022 “fl rie | Ao al er” es = of the Firm a Counsel: . Robert C. Barnard, Esq. »R. Michael Duncan, Esq. "CLEARY, GOTTLIEB, STEEN & HAMILTON {Office and Post Office Address {1250 Connecticut Avenue, N, W. |Washington, D. C. 20036 — —— } 99a Pre-Trial Order No. 3 ‘~@ Av UNITED STATES DISTRICT COURT al, SOUTHERN DISTRICT OF NEW YORK « —x COLUMBIA BROADCASTING SYSTEM, INC., CALVADA PRODUCTIONS, a joint venture, 3 JACK CHERTOK ION, INC, and ; 64 civ. 3814 DENA PICTURES, INCORPORATED, 4 Plaintiffs, 4 PRE-TRIAL ORD: ~against- ‘ic -" ) TELEPROMPTER CORPORATION and 3 CONLEY ELECTRONICS CORPORATION, a : = , Defendants. Me : - -x PRE-TRIAL ORDER NO. 3 The Court having entered a Pre-Trial Order Number 2 dated May 17, 1971, setting the trial date as September 22, 1971 and the parties having discussed among themselves a schedule for completion of discovery and pre-trial prepara- tions, and due deliberation having been had, IT IS ORDERED THAT - I. Discovery and Preparations for Pre-Trial - 1. Paragraphs 3, 4 and 5 of Pre-Trial Order No. 2 are deleted, and in lieu thereof, the parties shall comply with the following procedure and schedule in preparation for the pre-trial conference scheduled for September 15, 1971. 2. All pre-trial discovery with respect to the trial of the first stage of this case shall be completed by od * both sides on or before July 23, 1971. ~ Pre-Trial Order No. 3 3. On or prior to August 16, 1971, the parties will ~ exchange - (a) a statement listing the party's contentions of basic or ultimate facts which the party believes yennis-dk inane to be litigated at trial;— ——~(b) a list of all the exhibits the party expects to offer at the trial, with a description thereof sufficient for identification; cs (c) a list of all the witnesses which the party intends to call, stone with the specialties of empente to be calle. “a 4. On or prior to August 26, 1971, the parties will exchange - (a) a rebuttal statement listing any further contentions of basic or ultimate facts which, in the light of the other party's contentions or list of exhibits or witnesses, the party believes remain at issue to be litigated; ‘ (b) a list of any further exhibits ( with a sufficient description thereof) and a list of any further witnesses, in the light of the other party's contentions, exhibits or witnesses which lists shall be a good faith effort by each party to be complete; (c) a sta nt of objections, if any, to. exhibits listed in 3(b). 5. On or prior to September 2, 1971 the parties will exchange a statement of objections to exhibits listed in paragraph 4(b). 10la Pre-Trial Order No. 3 6. On or prior to September 8, 1971, the parties shall file with the Court - (a) The statements, lists and objections exchanged as set forth in paragraphs 3, 4 and 5 above, or a composite thereof; and : (b) If the parties have been able to stipulate as to certain facts, a copy of such stipulation; and a (c) Pre-trial memoranda summarizing each party's basic legal contentions and authorities. 7. (If either or both of the parties believes that a further pre-trial order is necessary or desirable in euane- tion with the trial of the first stage of this case, the parties will meet to attempt to agree on a single proposed order, and any such agreed-upon proposal, or separate pro- posals if no agreement is reached, shall be filed with the Court no later than September 10, 1971. a. Extension of the Provisions of Pre-Trial Order Number One to the Second Supplemental Complaint. ge ana of the provisions of Pre-Trial Order Number One are hereby extended and made applicable to the 16th and 17th Claims for Relief in the Second Supplemental Complaint, and the trial of the first stage of such 16th and 17th Claims for Relief shall be governed by Pre-Trial Order Number One. j Plaintiffs will comply with paragraph Cc of Part av ef *° Pre-Trial Order Number One, as applicable to the 13th, 14th and 15th Claims for Relief, and as made applicable by this .] i} 22 Pre-Trial Order No. 3 Pre-Trial Order Number Two to the 16th and 17th Claims for Relief, not later than August 9, 1971. Any application for leave of Court by plaintiffs pursuant to paragraph D of Part IV, or by defendants pursuant to paragraph B of Part V, of Pre-Trial Order Number One must be filed not later than August 16, 1971. Dated: New York, New York : 4 June > 1971. - er a0 ; che : ‘ ea 7 ° 103a Opinion heal | ré) rica (° > UNITED STATES DISTRICT couRT 7 OW7O/O,) ” _.seeRE es, SOUTHERN DISTRICT OF NEW YORK ; ° > ee een men eee see aseure MAY 2 1672 2.3ePY 3 COLUMBIA BROADCASTING SYSTEM, INC., 1% © DoF hk. Se CALVADA PRODUCTIONS, a joint venture, ore later placed in syndice- tion — licensed to isdivia>. televisicn jeniilintes for broadcast. Jack Chorin: Dealevie.sca, Inc., Calivada Preductions and Dena Pictures, 1c. ore tots »endent program peckagers which create telovisisa oroc... >» that ars fucnished to networks and imicpe:: t+. television stations. Defendant s Teleprompter Corp. is a New York corporation widely engaged in C.1V actiyities. Conley Electronics Corp. an Illinois corporation, is a wholly-owned subsidiary of Gefendant Teleprompter. Defendants' CATV systems, five of which were the subject of the eviden? at trial, operate generally as 4 follows. Illa Opinion ~ gee and a monthly charge. ‘The monthly charge does not vary with the amount of time CATV is used or with any particular programs watched. A coaxial cable links the homeowner's television set to the CATV facility. By means of this con- nection, horsowners receive two general types of programming on their sets. One is programming originated by the CATV : syste:s theazelvee eri carried by the cable. The other type” is progres ing received off-the-air by CATV receivers which / has been broodcast bv “regular” ty broadcast stations. Frequently, the homecwner could not- receive these signals via his reoitop antennas. All of the Cive CATV's have the capacity to carry twolve chrorslsa to subscribers, except New York, which has a 25-channel cable link to some subscribers. ; None of the CATV's uses its full complement of available channels. Crigination As mentioned above, Teleprompter's systems receive signals trom television broadcast stations, modify the sig- nals, and then carry them to subscribers‘ homes by coaxial ’ gable. In addition, »\cfendants' systems originate their own programs. This + + © ee by transmitting programs live, 2 on ‘ wehnniee omen film from the CATV station on channels f * not then being used for the received programs. Some of the origination consists of a camera scan of time and weather information, printed messages, stock and news tickers, and program listings -— what may be called “automatic ectglaction:® By 1969, all five of the stations were transmit- ting “automatic" eae Uae often consisting of time and weather information, virtually 24 hours a day. : In eddition to sie automatic origination, the stations carry varying amounts of other program origination. At the low end of the scale, the Elmira anetnn occasionally originates educational programming from a studio located in.a city school. This.material appears on the same channe) as the automatically originated programs, replacing the time message and weather scan during that period. Aside from these educational shows, the only origination by the Elmira -gtation is “automatic.” The anvtk Falls, Rawlins and Farmington stations originate more non-automatic programming than Elmira but less than New York. Though neither Great Falls nor Rawlins apparently originat y programming of this nature in. 1964, by 1969 both wida transmitting an average of ten hours - 10 =: 1f3a Opini tS a week besides time, weather and message scans. Farmington originated an average of four and a half hours a day, seven days a week in 1964; three hours a day, five days a week in 1969; and four hours a day, seven days a week in 1971. New York City originated approximately forty hours a weék of “non-automatic" programming during June 1969. By March 1971 this figure had grown to seventy hours a week. Programs originated by the Great Falls, Farmington, New York and Rawlins systems have a wide range of content, Though the emphasis varies in different cities, with a large amount of local coverage by all systems, the kinds of programs originated by these four CATV systems are generglly similar to those normally broadcast by television stations. Thus, Teleprompter criginates news, sports and weather reports, documentaries, educational and religious shows, discussions, interviewa, bingo, sports events, children's shows, movies and entertainment films. The number of hours of program origination is in all cases substantially less than the number of hours of broadcast programming transmitted by the CATV systems, In Bee 8 programming some Teleprompter per- . 2 ~. sonnel] perform tasks involved in broadcast : ee equipment used by Teleprompter stations to originate programs is also used by broadcast stations, BE. Distent Siqnals Since “[{t]he effective range of the broadcast is Getermineé by the combined contribution of the equipment «ployed by the broadcaster and that supplied by the viever," (certnigh tlv, 392 U.S. at 398), it is impossible to cetine a precise line between a "distant" and a “local” signal. The term is applied here only to connote a dis- tinetion baterren sicnals ordinarily receivable by rooftop c= tower-mcunted antennas and those that are not. The plsintifis, at least, place a great deal of importance on this difference, All of Teleprompter's CATV systems except New York recoive and carry to subscribers signals not ordinarily _xeceivable .cither by house-top antennas or both house-top and tower-nounted antennas. These systems are outside the "Grade B" contour of the stations whose signals they receive 4 ‘ tour of a television i oom . station is the boundary of a hypothetical . area at whose outer limits television 115a ~ Opinion * reception of “a quality acnegeaniks to the median observer'' is expected to be available at least SO percent of the time at the best 50 percent of the re=- ceiver loca@ions, based on expected field intensities and certain assumptions 23 to the nature and height of the teceiving entenna, and the capabilities of the television set. For the Grade A contour tho pertinent figures are 90 percent of the time and the best 70 per- cent of the locations. These predicted contours are plotted on the basis of propa- cation charts and rules set forth in 47 : CFR 73.684." (Stipulation No. l, € 60. ) In most instances the signals are received in the locale where they were broadcast by a receiving antenna. the signals are then carried by es transmission, cometimes hundreds of miles, to a microwave receiving sta- tion. From there the signals would be carried by cable, eventually to subscr{ 3 ” “a -3* homes. ’ ~ i9 onsy 43 miles from Farmington, mountains between the two cities pr-vent reception in Farmington by house-top antennas. Fariuington is within the "Grade B" contour of the Durango station. Beginning in November 1970 the. Farmington CATV re- ceived and distributed signals of four telovision stations in Los Angeles, California, in addition to those stations men- 3/ tioned above. aes is over 600 miles from Los Angeles, so off-the-air recepti, (Soe fhe Los Angeles otatich! by eithe: ‘ house-top or tower-mounted sint gang. is impossible. Signals "are ES - 14 @ 117a Opinion ‘of the Los.Angeles stations were received off-the-air by antennas forty~seven miles from Los Angeles. They were then carried by microwave via twenty-three steps over & roundabout, 1300-mile roucc to Parmingtcn. , It snould also be noted that translators owned by mn duan Non-Profit TV Association serve the Parmington "ea "22 hy :+ion’s operations are supported by voluntary a athe’ -.;.Parmington residents. A translator receive eign: po 4 Celevision broadcasting station, converts the carricr waves of the céheviaion signals to a new carrier ? frequency, amplifies them, and broadcasts them into the is. . etiam oni in Farmington received three VHF stations located in REDE and rebroadcast them on “UBF pee A Purri.ge : By oe .. 1.28 eould then receive the signals on house~ tup unt ate pee and its Albuquerque affiliate, KGGM-TV, gave weitten permission fox rebroadcast by the Association's translators. The Great Falls CATV imports distant signals by a ~ a fe os ats cf the television brozdcasts off-the-~ > . tate. ‘Friree and carrying them by microwave to Great Falls. signs are eee: in — Falis from, Spokane, Washingtc:.: ‘Pee: oa, Yee ane (163 miftys) 5 Salt Lake City,: Geab {465 a; and 1 Helena, Montana (71 miles). tq mm 18 @ It appears that all five CATV sintuiee carry every television broadcast s*ation opersting within their own areas. That is, any station a rE : tises the fact that ‘gubsa;épers can receive distant signals. that are otherwise ‘anavailable. It cannot be said either that 121a Opinion the originated programs are publicized only to attract sub- scribers to a “basic” reception service, or, on the other hand that the received programming is advertised in order to promot: the "basic" sale of originated programs, Toleprompter's gyst«..8 sell one basie service which includes both original prog. asuing wn programming received off-the-air from broadcast stations. Gelso ooter aid be most likely to emphasize in its taverctising -/aatever At thought would convince consumers to parchase this «ne service. P Teleoxcmpter’s Hew York CATV system s01d commerciale for it. originel coverage of sporting events from Madison Squax Garce:, commencing on January 1, 1970. These commercial mes~ pages cbhntnioie of two ten-second “billboards” tofore and afte the event (identifying the sponsor) and two 60-second commer- ciol announcements during the program, The sponsor paid a totel of $300 for each sporting event. Plaintiff introduced evidence that Teleprompter intends to increase its sales of commercials in the future, but dyring the period covered by the pleadings in thifs.case, no other commercials than enees Od, has x ‘ « were sold. : III. Our point of departure in determining Teleprompter's liability uncer the Copyright Act is the Supreme Court's de- cision in Fuztnichtly. As mentioned above, Fortnightly held that the coryright Liability of CATV “Gepends upon a deter- #inacion of “i+ function that CA%V plays in the total process of telovision xoadeasting and reception,” (at 397). Finding net «elevision viewing results from the combined activity of he vtnarsters «ic viewers, the Court concluded that broadcaste perfoma while clewers do not. Out task, as the parties revog- nize, Ls to dacide wheather Teleprompter ‘se systeus "functicn" as SroaAdcasters or as viewers. Tucerya it found the CATV syctems before it to be on tue ‘viewer's side of the line" (at 399), the Fortnightly Couvt Gid net delineate the “functions” of a viewer and his recaiving equipment. Rather, it analogized the function per- forscd by CaTv to that of "a well-located antenna with an efZicient connection to the viewer's television set.“ Id. Bot “received and delivered" electronic information (at 399 Ne27). Whether this well-located antenna was owned by one homoowner, im ‘ sevcral homeowners or af =ntrepreneur did not affect its function in the Court's ¢ sew. « 2 « 123a Opinion The Court did set forth the important functions of ys broadcasters and compared them with the functions of the eorenicht Ly CATV systemss “Broadcasters select the programs to be viewed; CATV systems simply carry, without -Jiting, whatever programs they receive, - vroedcasters procure saouien and propagate them to the public; CATV systems receive programs that have been released to the public nna carry them by private channels to additional viewers.“ (citations omitted) (at 400) Other distinguishing ° 1 Opinion air. Broadcasters propagate signals over-the-air, the argument goes; and since the microwave transmitters used ay Teleprompter do also, Teleprompter, we are told, is functioning as a broad~ caster. However, a broadcaster sends out signals to the public while, as we have found, Teleprompter uses microwave to carry signals from one of its facilities to another; no homeowner receives Teleprompter's microwave transmissions. Its use of . microwave is thus completely analogous to the use of cable as a connecting carrier. Not every over-the-air transmission of signals by electromagnetic energy is a broadcast, human speech being just one example. Nor does interconnection of several Teleprompter CATV's with closed-circuit theaters for the Liston-Ali fights make these CATV systems into 2 bréadcast network. This inter- connection occurred on two separate, temporary and special | occasions. Teleprompter's CATV‘'s were interconnected only in the sense that several of them were linked to the same independ nationwide circuits. Whatever this brief interconnection may portend for the future, it does not transform defendants’ pres- ent CATV systems into a esac network as plaintiffs suggest Defendants’ abs ortiaing, efforts are bonewhat similar shy .- =~ to thoas of the Portnishttt systene. One CATV system in that 4 bli 127a Opini in relation. to the amount of programming carried by the New Yor carv. Importantly, these commercials were sold and carried as part of the programming oricinated by Teleprompter, and not in connection with its transmittal of over-the-air broadcasts. Of course, both types of programming were part of the same overall service, and, realistically, some of the audience for the commercials was at least pertly attracted to SGiinidieahin by its “reception service." But the commercials were not inserted in the midst of the caveives programs, and the sponsor seems to have geared the commercials closely to the originated sports events. We come now to Teleprompter's importation of distant signals — the retransmission of broadcast signals that cannot be received on rooftop or tower-mounted antennas. This func- tion is a salient feature of the Farmington, Great Falls and Rawlins CATV's and is also present in Elmira. It is almost certainly responsible for much of the business of the first three of these systems, Plaintiffs contend that Teleprompter is engaging in broadcasting by bringing signals into ty new locale. In plain- tiffs view, importati ot distant signals differentiates ¥ wet ¢ ee ; as an auxiliary antenna to enhance the quality of the a 25 ‘= o> ® htt ‘ télevision picture. . ." {Plaintiffs‘ pre-trial brief at 8, 19). Plaintiffs thus urge us to limit the copyright immunity resulting from Fortnightly to those CATV's which “enhance” the quality of picture that can already be received in the locale. > reading of the Fortnightly opinions of the Distric Court, Court of Appeals and Supreme Court reveals that the Fortnishtly systems did more than “enhance” poor quality pic- tures -- they in fact brought in stations from which usable reception could not be had at all. All of the courts recog- nized that the Fortnichtly CATV's carried broadcasts to adai- tional, viewers. Fortnichtly involved two CATV's, one in and around Clarksburg, West Virginaa, and another in and nainnle Fairmont, West Virginia, eighteen miles from Clarksburg. Clarksburg is located approximately 82 miles from Pittsburgh, 57 miles fron Wheeling, West Virginia, and 74 miles from Steubenville, Ohio - the cities from which it received broadcast signals. ?airmont, which received the same signals, is 67, 52 and 65 miles from those cities respectivoly. The Fortnightly systems had anten- nas on hills above cuaks Ii and — connected by coaxial cables to indivizaal sicniaeaithsii 129a Opinion District Judge Herlands found thats _ "No credible competent evidence was adduced which Gemonstrated that the resi- dents of Cler:buxg or Fairmont, other than the subscribers to defendant's systems, could receive a usable and reasonably satis~- factory pictes:> from any ef the five stations in Pittsbury’, Vheeling cr Steubenville.*® 255 F.Surp. at 186, afs'd 377 F.2d 872, 883 n. 14 (2d Cix. 1367). Judge Herlands olso founi os a fact thats "She brsic purpose of defendant's CATV systems. . .is to process and retrensmit signals of a tclevision broadcast station to areas in which direct reception by ordinary home antennas of such talevision broadcast is unsatisfactoxy because of distance, inter- vening topographical conditions, or similar factors." 255 F.Supp. at 196. The Court of ? Ss ropenis cited Judge Herlands* first finding above in statin; rhe *(t}he hilly terrain in and ‘around Clarksburg and paizmont makes reception = normal = 27 = rooftop antennas of television programs broadcast by the Pittsburgh, Steubenville and Wheeling stations difficult or impossible.” 377 F.2d 872, 874 (2d Cir. 1957) (:mmbhasis ad The Supreme Court treated the Fo-tnichiily case as op where most residents of the areas involv2a could not receive broadcasts of other than local stations by ordin=:y ~oeftop antennas. 390 U.S. at 391. It went on to cistin:uish CATV systems from broadcasters on the ground thet the forr= “receive programs that have been roleased to the se ith carry them by private channels to c2ditieual vieves at 400 (Emphasis added). zt is clear, thon, at. Telemren-tsr’s signals not receivable on rooftop as. Tlerent ire that in Fortnightly. This case differs from Fort: 3.-ctty in that in a number of the epateion the anten:a tower receiving th signals is located not on a hill over the city but mony miles away in the vicinity of the broadcasting station. Faraington, as we have seen, receives Los Angeles stations whose signals are recoived off-the-aix near their point ot scigination and relayed by microwave tojlew Mexico. Does this greater distance Bes; ae alone between the receiving antenna ang:the CATV station and its customers change the’-function of the Fortnichtly reception 13la Opinion Service? To put the question another way, did the Supreme Court mean to imply a geographical limit beyond which signals could not be imported? Though the Court, of course, was con- cerned with the system before it, which imported signals from » waximum Gistance of 62 miles, there is no indication that 10/ irtended to imply a geographical limit. In fact, the gone ue Court in Fortnichtly explicitly declined to make copy~ righ: liability dependent on the distance the broadcast signal saa gurried hy a CATV. Thera the Court saids "Wwe have been invited by the Solicitor General in an anicus cori2ee brief to render a compromise decision in this cace that would, it is said, accowmodate various competing con~- giderations of copyright,. commmnications, and te antitrust policy. We decline the invitation. #2/zhe Soliciter General would have us hold that CATV systems co perform the proyrams they carry, but he would have us “impl; a license for the CATV “performances.” This “implied in law® license would not cover all CATV activity but only those in- stances in which a CATV system operates within the "Grade B Contour" of the broadcasting station whose signal it carries. The Grade B contour is;2 theoretical FCC concept defined as th outer line along which reception of acceptable quality can be expected at least 90% ai“the time at the best 50% of locations Sixth Report and Order,*.i7 Ped. Reg. 3905, 3915. Since we hol that the petitioner's systems did not perform copyrighted wor. we do not reach the question of implied license. = 29 urge, it is worth noting that the Federal Communications Com~ mission does require non-automatic program origination by most cCAIV systems, 47 €.>.R. § 74.1111, We do not coubt that Teleprompter’s program origina- tion is similor to tust Soles? broadcasters, These CATV's select the »rogran.:, srepugetls them, and have control over proyram content inc uczangemant, Teleprompter’s New York system sell: comics ciris for 2 portion, albeit small, of its ' oricinated schedul«. Certainly New York originates at least as many hours of proctsiming as many local broadcast stations. With respect to its peacvam oricination {clcprorpter is func=- tiching a8 u broadcestoxr,. fe are thu: faced with the question of whether a CATV's function as a broadcastcr with respec [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0229%3A10. Public record. Not legal advice.