In a development that may signify an uphill battle for Aereo, Inc. in its quest to obtain compulsory licensing rights, a New York district court judge held Aereo rival FilmOn in contempt of a 2012 injunction for continuing to deliver live TV streaming services after the U.S. Supreme Court deemed Aereo’s service to be in violation of broadcast copyrights. Like Aereo, FilmOn has been targeted by broadcasters for providing copyrighted programming to customers through a network of miniature antennas that captures and transmits live, over-the-air broadcasts to subscribers over the Internet.
Two years ago, the networks convinced U.S. District Court Judge Naomi Reice Buckwald to grant injunctive relief against FilmOn, but the company resumed service to its New York customers after the Second Circuit Court of Appeals decided to overturn a similar injunction against Aereo. FilmOn, however, is prohibited from offering service elsewhere in the U.S. under the terms of an injunctive order issued last year by the U.S. District Court for the District of Columbia. Notwithstanding last month’s Supreme Court ruling, FilmOn continued to distribute over-the-air broadcasts in its New York service area for nine days. In so doing, FilmOn pointed to the high court’s conclusion that Aereo’s business model resembles a cable service in contending that FilmOn is entitled to the same compulsory license rights that enable cable operators to distribute copyrighted broadcast programming.
Citing an earlier pronouncement of the Second Circuit Court that Internet streaming does not qualify for a compulsory license, Buckwald decreed late last week that FilmOn “is not entitled to a license . . . and its retransmissions clearly and unambiguously fall under the scope of conduct barred by the injunction.” Buckwald also faulted FilmOn for “[attaching] far too much importance to the Supreme Court’s analogizing,” declaring: “the day the Supreme Court decided Aereo, you no longer had the cover of the Second Circuit’s opinion.” Adding, “on that day, FilmOn . . . should have pulled all of the content,” Buckwald imposed a penalty of $90,000, which amounts to $10,000 for each of the nine days that FilmOn continued to operate beyond the Supreme Court ruling. FilmOn founder Alki David vowed his company would appeal the decision, which he lamented as “unqualified and wrong.”