The debate over whether the streaming of broadcast television is legal has found its way to court again. On August 7, 2012, BarryDriller Content Systems Plc. (“BDCS”) launched its streaming service on the website www.barrydriller.com. Three days later, on August 10, 2012, NBCUniversal LLC, American Broadcasting Companies, Inc., CBS Broadcasting Inc., and Fox Broadcasting Inc., sued BDCS for copyright infringement. Fox Broadcasting Inc. also brought a claim for trademark infringement.
Founded by Alki David, the CEO of FilmOn PLC, an online streaming website that recently reached a settlement agreement with the networks, BDCS provides subscribers in Los Angeles and several other major cities access to broadcast television on their computers and mobile devices for a monthly fee. BDCS provides its users with small antennas that capture live television signals, allowing users to watch live television over the Internet without any additional devices. BDCS’s services do not include DVR capability.
In the wake of the recent decision denying an injunction against Aereo, Inc., as previously discussed by Arent Fox, the networks argue that “no amount of technological gimmickry by [BDCS] changes the fundamental principle of copyright law that those who wish to retransmit…broadcasts may only do so with Plaintiff’s authority.” Accordingly, the networks assert that by retransmitting copyrighted content without a license, BDCS violates the rights granted under the Copyright Act. The networks believe that BDCS’s services will harm their agreements with affiliates and online services like iTunes and Hulu, and could have an effect on advertising revenue since the networks will not be able to determine BDCS’s viewership and the popularity of content.
As Internet-based television grows in popularity, networks will likely face continued efforts to retransmit and repackage programming by third parties. Whether this retransmission is legal under the Copyright Act could have a significant effect on the industry. As new methods of recording and broadcasting content develop, networks have adjusted their business models to license content differently, and will have to continue to do so.