After Aereo lost in the Supreme Court last month, it pursued a new legal strategy: It is a cable company, and therefore eligible for the same compulsory license that allows other multichannel providers to carry broadcast programming.
But a federal court ruling on Thursday against a competitor, FilmOn, suggests an uphill battle for Aereo as it seeks such a license.
After the June 25 Supreme Court decision, FilmOn started offering broadcast streams of stations in the New York area. But U.S. District Judge Naomi Reice Buchwald ruled that such transmissions still violated a 2012 injunction against FilmOn, and imposed a $90,000 sanction against the company.
FilmOn had argued that such transmissions were legal because the 2012 injunction didn’t expressly prohibit the mini-antenna technology, and was instead put in place for a previous type of streaming service they offered. But Buchwald wrote that FilmOn was prohibited from offering streaming of broadcast signals “by any means.”
She also rejected another FilmOn argument, rooted in the Supreme Court’s majority opinion that because Aereo was similar to a cable system, its streaming of broadcast signals fell under copyright restrictions imposed on those multichannel providers. FilmOn, like Aereo, contends that such an opinion, while imposing copyright liability, also entitles it to a compulsory license to stream the broadcast programming.
But Buchwald ruled that FilmOn “attaches far too much importance to the [Supreme] Court’s analogizing,” adding that even though the high court may have said that Aereo is “very similar” to a cable system, that is “not the same as a judicial finding that Aereo and it technological peers are, in fact, cable companies entitled to retransmission licenses under the Copyright Act.” Even then, she wrote that FilmOn should have first obtained the license from the Copyright Office before streaming the signals, which is something that the office has so far refused to do.
What’s more, Buchwald suggested that the avenues for Aereo and FilmOn are blocked by the Supreme Court decision, even in New York’s 2nd Circuit. She wrote that “while the Second Circuit may previously have been a haven for companies like Aereo and FilmOn to employ the mini-antenna technology, after [the Supreme Court decision], that haven no longer existed.”
Aereo put a “pause” on its service in light of the ruling. It can perhaps take some heart that Buchwald’s ruling is one judge’s opinion. It is pursuing its claim before another federal just in the same court, Alison Nathan.