FilmOn Loses Against TV Broadcasters in DC

Issue 35 FEA Alki David - H 2012
Christopher Patey

Issue 35 FEA Alki David - H 2012

A D.C. federal judge has ruled that FilmOn is liable for infringing the public performance rights of Fox Television and other major broadcasters and has dealt a blow to the digital streamer's argument that it is entitled to a compulsory license of programming.

The full opinion by U.S. District Judge Rosemary Collyer is currently under seal at the moment so her rationale will remain secret for the time being. But her short order accompanying the opinion and denying FilmOn's motion for summary judgment and granting in part the broadcaster's own motion is public record. In the order, she finds FilmOn X (which allowed network streams) to be an infringement of copyrights while giving FilmOn.TV (an affiliate with a library of shows and movies) and its founder Alki David a pass from liability.

The decision potentially sets up a sequel to the Supreme Court case concerning Aereo, another streamer that was deemed illegal after being likened to an unlicensed cable operator.

That's because last July, a federal judge in California came to the conclusion that the Aereo case supported the idea that if a TV streaming company is like a cable company, FilmOn should potentially be allowed to pay compulsory license fees under Section 111 of the Copyright Act. In that decision, U.S. District Judge George W. Wu wrote that "courts consistently reject the argument that technological changes affect the balance of rights as between broadcasters and retransmitters in the wake of technological innovation."

As Fox pursues an appeal up to the 9th Circuit, FilmOn aimed to get a federal judge over on the East Coast to adopt the same reasoning. The effort before Collyer appears to have been unsuccessful.

So depending on what happens next at the appellate stage, and how the Federal Communications Commission weighs in, the possibility exists that the high court could need to intervene to settle a circuit split.

The FCC's own opinion could be crucial. The agency is weighing a new definition of MVPD ("multichannel video programming distributor") so that it is technology-neutral and covers online video providers as well as cable and satellite operators. In doing so, the agency would likely have to make a determination about what to do about the compulsory license scheme.

UPDATE 11/13: FilmOn has issued a response.

"FilmOn.TV is disappointed with the D.C. court's ruling finding its partner FilmOn X is not entitled to a compulsory copyright license," says the company in a statement. "The real losers are the citizens, for whom free access to the airways that belong to them is once again restrained by a judge's incorrect statutory interpretation favoring big business over technological advancement. The public's right to employ technology to access free-to-air television was at the center of the California court's ruling issued earlier this year. In that case, the Judge Wu applied the plain language of the Copyright Act, finding that FilmOn X may obtain a compulsory license. In light of the conflicting rulings, this may be an issue that is ultimately resolved by the Supreme Court."