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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Attorneys for DefendantsDISNEY ENTERPRISES, INC.,PARAMOUNT PICTURES CORP.,TWENTIETH CENTURY FOX FILM CORP.,WARNER BROS. ENTERTAINMENT, INC
GLENN D. POMERANTZ (SBN 112503)Glenn. [email protected] H. WILLIAMS (SBN 134009)Bart. [email protected] M. KLAUS (SBN 161091)Kelly. [email protected], TOLLES & OLSON LLP355 South Grand Avenue, Thirty-Fifth FloorLos Angeles, CA 90071-1560Tel: (213) 683-9100; Fax: (213) 687-3702
ROBERT H. ROTSTEIN (SBN 72452)rxr@mskcomERIC J. GERMAN (SBN 224557)ejg@mskcomBETSY A. ZEDEK (SBN 241653)baz@mskcomMITCHELL SILBERBERG & KNUPP LLP11377 West Olympic BoulevardLos Angeles, California 90064-1683Tel: (310) 312-2000; Fax: (310) 312-3100
GREGORY P. GOECKNER (SBN 103693)[email protected] E. ROBBINS (SBN 156934)[email protected] Ventura Boulevard, Building ESherman Oaks, California 91403-3102Tel: (818) 995-6600; Fax: (818) 285-4403
CASE NO. C-08-4548-HRL
PUBLIC REDACTED VERSIONNOTICE OF APPLICATION AND EXPARTE APPLICATION OFDEFENDANTS FOR TEMPORARYRESTRAINING ORDER AND ORDER TOSHOW CAUSE RE: PRELIMINARYINJUNCTION
REALNETWORKS, INC. ANDREALNETWORKS HOMEENTERTAINMENT, INC.,
Plaintiffs,
vs.
DVD COPY CONTROL ASSOCIATION,INC., DISNEY ENTERPRISES, INC.,PARAMOUNT PICTURES CORP. SONY
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NOTICE & APPL. OF DEFENDANTS FORTRO AND ORDER TO SHOW CAUSE
Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al Doc. 8
Dockets.Justia.com
1 GLENN D. POMERANTZ (SBN 112503)Glenn. [email protected] BART H. WILLIAMS (SBN 134009)Bart. Williams@mto. com
3 KELLY M. KLAUS (SBN 161091)Kelly. Klaus@mto. com
4 MUNGER, TOLLES & OLSON LLP355 South Grand Avenue, Thirty-Fifth Floor
5 Los Angeles, CA 90071-1560Tel: (213) 683-9100; Fax: (213) 687-3702
6ROBERT H. ROTSTEIN (SBN 72452)
7 [email protected] J. GERMAN (SBN 224557)
8 [email protected] A. ZEDEK (SBN 241653)
9 [email protected] SILBERBERG & KNUPP LLP
10 11377 West Olympic BoulevardLos Angeles, California 90064-1683
11 Tel: (310) 312-2000; Fax: (310) 312-3100
12 GREGORY P. GOECKNER (SBN 103693)[email protected]
13 DANIEL E. ROBBINS (SBN 156934)dan_robbins@mpaa. org
14 15301 Ventura Boulevard, Building ESherman Oaks, California 91403-3102
15 Tel: (818) 995-6600; Fax: (818) 285-4403
16 Attorneys for DefendantsDISNEY ENTERPRISES, INC.,
17 PARAMOUNT PICTURES CORP.,TWENTIETH CENTURY FOX FILM CORP.,
18 WARNER BROS. ENTERTAINMENT, INC
19UNITED STATES DISTRICT COURT
20NORTHERN DISTRICT OF CALIFORNIA
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23 REALNETWORKS, INC. AND CASE NO. C-08-4548-HRLREALNETWORKS HOME
24 ENTERTAINMENT, INC., PUBLIC REDACTED VERSIONNOTICE OF APPLICATION AND EX
25 Plaintiffs, PARTE APPLICATION OFDEFENDANTS FOR TEMPORARY
26 vs. RESTRAINING ORDER AND ORDER TOSHOW CAUSE RE: PRELIMINARY
27 DVD COPY CONTROL ASSOCIATION, INJUNCTIONINC., DISNEY ENTERPRISES, INC.,
28 PARAMOUNT PICTURES CORP., SONY Time: N/A
NOTICE & APPL. OF DEFENDANTS FORTRO AND ORDER TO SHOW CAUSE
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Defendants.
PICTURES ENTERTAINMENT, INC., Date:TWENTIETH CENTURY FOX FILM CORP.,NBC UNIVERSAL, INC., WARNER BROS.ENTERTAINMENT, INC., VIACOM, INC.
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N/A
NOTICE & APPL. OF DEFENDANTS FORTRO AND ORDER TO SHOW CAUSE
1 PICTURES ENTERTAINMENT, INC., Date: N/ATWENTIETH CENTURY FOX FILM CORP.,
2 NBC UNIVERSAL, INC., WARNER BROS.ENTERTAINMENT, INC., VIACOM, INC.
3Defendants.
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NOTICE & APPL. OF DEFENDANTS FORTRO AND ORDER TO SHOW CAUSE
Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=08e92a5a-2d75-4b26-8475-f36bcd72c013
EXPARTE APPLICATION
and restraining the same activities, should not issue.
officers, agents, servants, employees, and attorneys, and those persons in active concert or
RealNetworks, Inc. and RealNetworks Home Entertainment, Inc. ("Real") and all of their
An order to show cause why a preliminary injunction, against the same persons2.
participation or privity with any of them, from selling, offering, marketing or otherwise
trafficking in the software product known as ReaIDVD, or any product with substantially similar
functionality.
Defendants Disney Enterprises, Inc., Paramount Pictures Corp., Twentieth Century Fox
Film Corp., and Warner Bros. Entertainment, Inc., (collectively, "the Studios,,)1 hereby apply ex
parte to this Court for:
1. A temporary restraining order ("TRO") restraining and enjoining Plaintiffs
This application has already beenfully briefed. The Studios filed an identical Ex Parte
Application in the Central District of California on September 30, 2008, the same day on which
they filed their Complaint For Violation Of Digital Millennium Copyright Act, 17 U.S.C.
§§ 1201, Et Seq. And For Breach of Contract against Real. The Central District action was
assigned to the Honorable S. James Otero as Case No. CV08-06412 SJO AJWx.
The Studios provided notice to the Plaintiffs last week that they would be seeking a TRO
in the Central District. The Application was then fully briefed over the past week. Today, Judge
Otero issued an Order Transferring Action to the Northern District of California, which is
attached to the non-confidential version of this Application as Exhibit 11. He did not issue a
decision on the Studios' application for a temporary restraining order.
The Studios are thus re-filing their application and supporting papers in this Court along
with the opposition brief, declarations, and supporting papers filed by Plaintiffs. The Studios
submit that this Application can and should be immediately ruled upon.
I Universal City Studios Productions LLLP, Sony Pictures Television Inc. and Columbia PicturesIndustries Inc. will be seeking to join this TRO application and the counterclaim filed herewith aspromptly as possible.
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1 NOTICE & APPL. OF DEFENDANTS FORTRO AND ORDER TO SHOW CAUSE
1 EXPARTE APPLICATION
2 Defendants Disney Enterprises, Inc., Paramount Pictures Corp., Twentieth Century Fox
3 Film Corp., and Warner Bros. Entertainment, Inc., (collectively, "the Studios")1 hereby apply ex
4 parte to this Court for:
5 1. A temporary restraining order ("TRO") restraining and enjoining Plaintiffs
6 RealNetworks, Inc. and RealNetworks Home Entertainment, Inc. ("Real") and all of their
7 officers, agents, servants, employees, and attorneys, and those persons in active concert or
8 participation or privity with any of them, rom selling, offering, marketing or otherwise
9 trafficking in the sotware product known as RealDVD, or any product with substantially similar
10 functionality.
11 2. An order to show cause why a preliminary injunction, against the same persons
12 and restraining the same activities, should not issue.
13 This application has already been fully briefed. The Studios iled an identical Ex Parte
14 Application in the Central District of California on September 30, 2008, the same day on which
15 they iled their Complaint For Violation Of Digital Millennium Copyright Act, 17 U.S.C.
16 §§ 1201, Et Seq. And For Breach of Contract against Real. The Central District action was
17 assigned to the Honorable S. James Otero as Case No. CV08-06412 SJO AJWx.
18 The Studios provided notice to the Plaintiffs last week that they would be seeking a TRO
19 in the Central District. The Application was then fully briefed over the past week. Today, Judge
20 Otero issued an Order Transferring Action to the Northern District of California, which is
21 attached to the non-conidential version of this Application as Exhibit 11. He did not issue a
22 decision on the Studios5 application for a temporary restraining order.
23 The Studios are thus re-iling their application and supporting papers in this Court along
24 with the opposition brief, declarations, and supporting papers iled by Plaintiffs. The Studios
25 submit that this Application can and should be immediately ruled upon.
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27 Universal City Studios Productions LLLP, Sony Pictures Television Inc. and Columbia PicturesIndustries Inc. will be seeking to join this TRO application and the counterclaim iled herewith as
28 promptly as possible.
i NOTICE & APPL. OF DEFENDANTS FORTRO AND ORDER TO SHOW CAUSE
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1 Good cause exists for the foregoing Order. As set forth in the accompanying
2 Memorandum of Points and Authorities and supporting papers filed herewith, Real is violating
3 and will continue to violate 17 U.S.C. § 1201, et seq., by manufacturing, offering to the public,
4 providing, or otherwise trafficking in a software product entitled "ReaIDVD." RealDVD (a) is
5 primarily designed and produced, (b) is marketed by Real and (c) has no commercially significant
6 use other than to circumvent the Content Scramble System technology that controls access to and
7 copying of the Studios' copyrighted works when those works are encrypted onto DVDs. As
8 further set forth in the Studios' Memorandum of Points and Authorities and supporting papers,
9 Real's conduct is causing and unless restrained will continue to cause immediate and irreparable
10 harm to the Studios, including to their DVD rental and sale markets, and to many other young and
11 developing markets for the distribution of Plaintiffs' works in digital fonnat. Further, Real will
12 suffer no cognizable hardship in waiting for the very briefperiod until a preliminary injunction
13 motion can be briefed is real and immediate.
14 This Application is based on the following pleadings filed in the Central District of
15 California and attached to the non-confidential version of this Ex Parte Application: the
16 Memorandum of Points and Authorities (Exh. 1); the Declarations of Glenn D. Pomerantz
17 ("Pomerantz Decl.") (Exh. 2), Alan Bell ("Bell Decl.") (Exh. 3), Michael Dunn ("Dunn Decl.")
18 (Exh. 4), John P. J. Kelly ("Kelly Decl.") (Exh. 5) and in Support of the Studios' Application for
19 Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction; the Studios'
20 Reply BriefIn Support of Ex Parte Application For TRO (Exh. 10). This Application is based
21 also on the following pleadings attached to the confidential version of this Ex Parte Application:
22 the confidential version of the Memorandum of Points and Authorities and the confidential
23 version of the Declaration of Glenn D. Pomerantz.
24 Also attached to the non-confidential version of this Ex Parte Application are Real's
25 opposition papers and supporting declarations: Real's Opposition to the Studios' Ex Parte
26 Application for a TRO (Exh. 6); the Declarations of Jacqueline Lang (Exh. 7), Jeffrey Buzzard
27 (Exh. 8), and Gordon Klein (Exh. 9) In Support of Real's Opposition to the Studios' Ex Parte
28 Application For A TRO.
2 NOTICE & APPL. OF PLAINTIFFS FORTRO AND ORDER TO SHOW CAUSE
1 Good cause exists for the foregoing Order. As set forth in the accompanying
2 Memorandum of Points and Authorities and supporting papers iled herewith, Real is violating
3 and will continue to violate 17 U.S.C. § 1201, et seq., by manufacturing, offering to the public,
4 providing, or otherwise traficking in a sotware product entitled "RealDVD." RealDVD (a) is
5 primarily designed and produced, (b) is marketed by Real and (c) has no commercially signiicant
6 use other than to circumvent the Content Scramble System technology that controls access to and
7 copying of the Studios' copyrighted works when those works are encrypted onto DVDs. As
8 further set forth in the Studios' Memorandum of Points and Authorities and supporting papers,
9 Real's conduct is causing and unless restrained will continue to cause immediate and irreparable
10 harm to the Studios, including to their DVD rental and sale markets, and to many other young and
11 developing markets for the distribution of Plaintiffs' works in digital format. Further, Real will
12 suffer no cognizable hardship in waiting for the very brief period until a preliminary injunction
13 motion can be briefed is real and immediate.
14 This Application is based on the following pleadings iled in the Central Distict of
15 California and attached to the non-conidential version of this Ex Parte Application: the
16 Memorandum of Points and Authorities (Exh. 1); the Declarations of Glenn D. Pomerantz
17 ("Pomerantz Decl.") (Exh. 2), Alan Bell ("Bell DecL") (Exh. 3), Michael Dunn ("Dunn DecL")
18 (Exh. 4), John P. J. Kelly ("Kelly DecL") (Exh. 5) and in Support of the Studios' Application for
19 Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction; the Studios'
20 Reply Bief In Support of Ex Parte Application For TRO (Exh. 10). This Application is based
21 also on the following pleadings attached to the conidential version of this Ex Parte Application:
22 the confidential version of the Memorandum of Points and Authorities and the conidential
23 version of the Declaration of Glenn D. Pomerantz.
24 Also attached to the non-conidential version of this Ex Parte Application are Real's
25 opposition papers and supporting declarations: Real's Opposition to the Studios' Ex Parte
26 Application for a TRO (Exh. 6); the Declarations of Jacqueline Lang (Exh. 7), Jeffrey Buzzard
27 (Exh. 8), and Gordon Klein (Exh. 9) In Support of Real's Opposition to the Studios' Ex Parte
28 Application For A TRO.
2 NOTICE & APPL. OF PLAINTIFFS FORTRO AND ORDER TO SHOW CAUSE
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1 In addition to the notice provided to Plaintiffs of the proceedings in the Central District of
2 California, this morning the Studios provided written notice of this Application, via e-mail and
3 fax to the following addressees:
This Application and all accompanying papers have been served bye-mail and fax on
counsel for the Defendants.
James A. DiBoiseWilson Sonsini Goodrich & RosatiOne Market StreetSpear Tower, Suite 3300San Francisco, California [email protected]: (415) 947-2114Facsimile: (415) 947-2099
See Pomerantz Decl. ~ 2 & Exs. A & D.
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DATED: October 3, 2008 MUNGER, TOLLES & OLSON LLP
MITCHELL SILBERBERG & KNUPP LLP
GREGORYP.GOECKNERDANIEL E. ROBBINS
By: /s/GLENN D. POMERANTZ
Attorneys for Plaintiffs
3 NOTICE & APPL. OF PLAINTIFFS FORTRO AND ORDER TO SHOW CAUSE
1 In addition to the notice provided to Plaintiffs of the proceedings in the Central Distict of
2 California, this morning the Studios provided written notice of this Application, via e-mail and
3 fax to the following addressees:
4James A. DiBoise5Wilson Sonsini Goodrich & RosatiOne Market Street6Spear Tower, Suite 3300
7 San Francisco, California 94105-1126j diboise@ wsgr.com8 Tel: (415)947-2114Facsimile: (415)947-20999
See Pomerantz Decl. ^ 2 & Exs. A & D.10
This Application and all accompanying papers have been served by e-mail and fax on11
counsel for the Defendants.12
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DATED: October 3, 2008 MUNGER, TOLLES & OLSON LLP14
MITCHELL SILBERBERG & KNUPP LLP15
GREGORY P. GOECKNER16DANIEL E. ROBBINS
17
By: Isl18GLENN D. POMERANTZ
19Attorneys for Plaintiffs
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NOTICE & APPL. OF PLAINTIFFS FOR3 TRO AND ORDER TO SHOW CAUSE
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