Filing briefs with the D.C. Circuit Court of Appeals, FilmOn X and its supporters asked the court to reverse a D.C. District Court decision to deny FilmOn’s claim that its online television streaming service is entitled to the same compulsory copyright license rights that cable operators and other multichannel video program distributors (MVPDs) enjoy. The case at hand closely parallels that of Aereo, Inc., an upstart online video distributor (OVD) that was forced into bankruptcy two years ago after the U.S. Supreme Court decreed that Aereo’s method of streaming live television broadcasts through a network of thousands of tiny dime-size antennas assigned to individual customers violated broadcaster copyrights. Aereo had also sought an FCC ruling that its OVD service qualifies as a MVPD that would be entitled to compulsory license rights and should therefore not be required to negotiate retransmission rights with broadcasters individually.
Although the FCC later commenced rulemaking proceedings on the question of whether OVDs should be classified as MVPDs, FCC Chairman Tom Wheeler paused that proceeding indefinitely last December on the rationale that “there are so many innovative things going on right now in the video space, and we want to continue to let it innovate.” Around the same time, a California district court judge ruled that FilmOn is entitled to a compulsory license, prompting at least one major broadcaster to file an appeal with the Ninth Circuit Court. Claiming that the transmission of television broadcast content by OVDs constitutes a “public performance” for the purpose of copyright law, broadcasters contend that any OVD that streams program content online without first obtaining retransmission consent violates their copyrights. The Ninth Circuit case remains under review at this time.
Asserting that Congress intended for the compulsory copyright license to extend to new technologies and that its service fits the statutory definition of a cable system that makes secondary transmissions by “wires, cables, microwaves or other communications channels,” FilmOn cautioned in an opening brief last week that, “if this court holds as a matter of law that Internet retransmission services are ineligible for a Section 111 [compulsory] license, it would create an unnecessary obstacle to broad public access to broadcast television over the Internet.”
In an amicus brief filed this week, Public Knowledge and the Electronic Frontier Foundation told the court that an extension of the compulsory license to FilmOn and other OVDs will promote innovation and competition “by ensuring that copyright law does not privilege incumbent video distribution services over new entrants” that use “cost effective new technologies.” The groups also echoed FilmOn in maintaining that “a facility that receives signals transmitted or programs broadcast by one or more television broadcast stations” and that “makes secondary transmissions of such signals or programs by wires . . . or other communications channels to subscribing members of the public is a ‘cable system’ under the Copyright Act.”
Meanwhile, oral arguments have been scheduled next week at the Ninth Circuit, and the National Association of Broadcasters recently warned that appellate panel in an amicus brief that a pronouncement upholding the California district court ruling would have a “devastating” impact on broadcasters.