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TV Broadcasters Granted Injunction Against Alki David's TV Streaming Service

The judge doesn't find the Aereo ruling to be persuasive.

Television broadcasters scored a big win on Thursday by getting a federal judge in the nation's capital to grant a near-nationwide preliminary injunction against FilmOn X, a TV streaming service that has been compared to Aereo. The ruling is a significant one that could go a long ways towards eventually setting up a Supreme Court showdown over whether the relaying of over-the-air TV signals to digital devices constitutes a transmission "to the public" and a violation of broadcasters' public performance rights.

Fox, NBCU, Disney/ABC, Allbritton Communications and Telemundo filed a copyright infringement lawsuit against Alki David's TV digital distribution services in Washington D.C. federal court in May.

In the ruling today, U.S. District judge Rosemary Collyer writes that she has considered the 2nd Circuit's decision to affirm the denial of an injunction against Aereo, but found the Barry Driller ruling "more persuasive." That's in reference to a California judge who had also granted an injunction against David's service, then called BarryDriller.

"This Court concludes that the Copyright Act forbids FilmOn X from retransmitting Plaintiffs' copyrighted programs over the Internet," adds the judge. "Plaintiffs are thus likely to succeed on their claim that FilmOn X violates Plaintiffs' exclusive public performance rights in their copyrighted works. Because there is no dispute of fact between the parties—indeed, each has won and each has lost in a different forum on these same facts—the Court will grant Plaintiffs' motion for a preliminary injunction."

In a statement about the ruling, Fox Broadcasting commented, "We are pleased, but not surprised that that the court recognized that the commercial retransmission of our broadcast signal without permission or compensation is a clear violation of the law.  This decision should finally put the matter to rest, and will hopefully discourage other illegal services from attempting to steal our content."

FilmOn X allows consumers to watch live and recorded television over the Internet. After being sued in DC, the company told the judge that its technology is "similar... in every relevant way" to Aereo insofar as it too offers an array of small antennas that are assigned to a specific, individual user. These antennas capture local television signals and deliver video and audio to FilmOn's users.

One of the big questions for Judge Collyer is how to square this technology with what was deemed legal in a case concerning Cablevision's remote-DVR. In 2008, an appellate court had blessed Cablevision's technology because "each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber ... such transmissions are not performances 'to the public.'"

Courts grappling with TV streaming technology have reviewed whether it's analogous to Cablevision's and have come to different conclusions about copyright law, and specifically, the Transmit Clause. Judge Collyer rejects the notion that she has to make a binary choice between the reasoning in Aereo and the reasoning in BarryDriller, but does spend a good deal of her 35-page decision (read in full here) discussing what was previously said by other judges on the topic.

Eventually, she takes guidance from the Supreme Court to give broadly written statutes a broad interpretation.

"The Court finds that the provisions of the 1976 Act that protect Plaintiffs' work are clear," she writes. "FilmOn X's service violates Plaintiffs' 'exclusive right... to perform the copyrighted work publicly.' By making available Plaintiffs' copyrighted performances to any member of the public who accesses the FilmOn X service, FilmOn X performs the copyrighted work publicly as defined by the Transmit Clause.'"

She adds, "The Transmit Clause, which applies whether 'members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times,' also plainly captures FilmOn X's DVR-like capabilities."

The judge also addresses FilmOn X's argument that it does not perform publicly because the service facilitates a one-to-one relationship between a single antenna and a viewer.

First, she doesn't buy it.

She writes, "While each user may have an assigned antenna and hard-drive directory temporarily, the mini-antennas are networked together so that a single tuner server and router, video encoder, and distribution endpoint can communicate with them all... This system, through which any member of the public who clicks on the link for the video feed, is hardly akin to an individual user stringing up a television antenna on the roof."

And second, she thinks it's encompassed in the law at question.

She says, "Congress intended 'device or process' in the Transmit Clause to include 'all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.'"

All of this adds up to the judge's conclusion that the broadcasters are likely to win the case. Together with a finding that broadcasters are likely to suffer irreparable harm, it means a preliminary injunction. What's also notable is the breadth of the ruling. While the judge in California who reviewed Alki David's technology was careful about extending an injunction to jurisdictions that might not agree, this judge has ordered a sweeping injunction.

"The Court's decision conflicts with the law of the Second Circuit under Aereo II," admits Judge Collyer, agreeing to extend the injunction to everywhere in the United States except the 2nd Circuit (which covers New York, Connecticut and Vermont).

The circuit split is one of the primary reasons why this dispute -- as well as the Aereo one -- seems primed to go to the Supreme Court for final resolution. In the meantime, the 9th Circuit is all set to come out with yet more legal wisdom on the legality of antennae-based TV streaming services. Last month, the appellate judges there heard arguments on whether or not to overturn the injunction issued by a California judge on Alki David's service. Today's ruling is certainly not the last word and won't as Fox suggests put the matter to rest, but it is an important development that muddies the water for TV streaming upstarts.

Regardless, Alki David is taking the development in stride. The colorful billionaire says, "We are still in many other cities across the USA. We are opening Philadelphia on Monday. We will win DC back on appeal. You mad Nets? Yes you so mad."

E-mail: Eriq.Gardner@THR.com

Twitter: @eriqgardner