The US District Court in Washington DC issued a decision earlier this month, enjoining the operation of the television streaming service FilmOn X throughout the United States – except within the Second Circuit (covering NY) where the US Court of Appeals reached a contrary decision in connection with Aereo – a very similar service. Both of these services utilize multiple small antennas to receive over-the-air television programs, which are recorded on a central server and sent over the Internet on demand to individual viewers. In effect, these viewers, by paying the subscription fee charged by the services, get their television programming on the Internet - through their computers and soon to their mobile devices. The contrary decisions in these two cases illustrate a fundamental disagreement between two courts as to the meaning of the "public performance" right enjoyed by copyright holders in their copyrighted works.
As we wrote here, the Second Circuit, in the Aereo case, determined that, as the transmission of the over-the-air programming was done on an individual basis, at the demand of the individual viewer, it was not a “public performance.” In the Second Circuit's opinion, the fact that the transmission is made to a single user, either when the program is aired or on a delayed basis, made each individual performance of the television program a "private performance," which did not infringe on the rights of the copyright holders, and more than a transmission of a signal from an antenna on someone's roof to the television set in the living room was a public performance. The DC Court disagreed with that interpretation, joining a District Court in California in deciding that this type of service, without the permission of the broadcaster, is a violation of the copyright laws.
The DC Court was very thorough in its review of the issue and its basis for disagreeing with the Second Circuit (or agreeing with the dissenting opinion in the Second Circuit). The issue raised in the FilmOn X case, whether the retransmission over the Internet of the over-the-air television signal of a broadcaster is essentially the same issue raised 40 years ago when cable television operators first started to operate, charging customers for bring them television signals from over-the-air TV stations. After the Supreme Court at that time, in the Fortnightly and Telepromter cases, agreed with cable operators that their retransmissions of television stations did not constitute a "public performance" of those signals, Congress intervened in 1976, revising the Copyright Act to make clear that such retransmissions of broadcast signals were in fact covered by the Act. The changes adopted then, which are still in place in the Copyright Act, were cited by the DC Court in finding that the operations of FilmOn X indeed violated the copyright holders public performance rights under the Copyright Act.
Specifically, the Copyright Act was amended to provide that not only was the transmission of a signal to many people at the same time a public performance, but so was any retransmission of that signal, whether done by any process or device, to multiple people at the same or at different times. The DC Court looked at that language, and found that the “process” of retransmitting television signals to the public, even if it was not done at exactly the same time, and even if done at the request of the viewer, was still a public performance. The DC Court faulted the Second Circuit for focusing on the technical device too much, and the interactions with a single individual, rather than focusing on the overall process employed by FilmOn X (and effectively by Aereo). In the Court's view, such a limited focus, could render almost any performance a private one, even when, collectively, the service in question was providing performances to the public.
This decision seemingly makes sense, as the alternative viewpoint advanced by the Second Circuit could exempt almost any performance delivered through IP technology from copyright liability. Delivery by IP is by its very nature most commonly a one-to-one relationship between the host and the viewer. Surely, the Court could not intend that all IP-delivered media would be exempt from any copyright royalty obligations. That determination could have profound impact on almost all copyright holders.
The DC Court went one step further than even the California court, enjoining FilmOn X from operating its service anywhere in the US, except for the Second Circuit. This decision, clashing with the determination of the Second Circuit in the Aereo case, paves the way for this issue to eventually reach the Supreme Court, particularly if, on appeal, either the Ninth (California) or DC Circuits uphold the decisions of the District Courts that they oversee. While that ultimate decision to this contentious issue may be far down the road, it will do much to help define the nature of a public performance for the future.