A federal judge rejected notions that the Supreme Court’s 2014 Aereo ruling opened the door to over-the-top Internet video services claiming a compulsory license to stream broadcast stations.
U.S. District Judge Rosemary Collyer’s decision against FilmOn X and in favor of broadcasters was unsealed on Wednesday, shedding light on her rationale for finding that FilmOn was not entitled a statutory license to stream those signals.
The Copyright Act of 1976 gives cable systems a statutory license access to broadcast station signals, but FilmOn had argued that this regime should extend to Internet services. In the Supreme Court’s 2014 ruling against Aereo, a service similar to FilmOn, the justices highlighted the “overwhelming likeness” between Aereo and a cable system.
But Collyer said that FilmOn’s argument was an “over-read” of the Supreme Court decision.
“The Supreme Court merely said that the differences between Aereo and cable companies were not sufficient to immunize Aereo’s practices from copyright liability,” she wrote. “Such a holding does not direct the courts to embrace a technology-agnostic interpretation of the Transmit Clause or, even less, the Copyright Act in all circumstances. The fact that ‘an entity performs copyrighted works in a way similar to cable systems’ cannot be construed as an order that such an entity ‘must then be deemed a cable system for all purposes of the Copyright Act.'”
Her decision diverges from one in July, in which U.S. District Judge George Wu in Los Angeles said that federal copyright code does not distinguish between traditional cable TV providers and online services like FilmOn with respect to rights to a compulsory retransmission license. Fox is appealing that decision.
Collyer also noted that Internet-based retransmission services are not cable systems and do not qualify for the compulsory license. She also found differences from AT&T U-verse and Verizon FiOS. While they use an Internet protocol to deliver programming, they are “not the same as the Internet.”
Although the FCC has an ongoing proceeding on whether to include certain Internet video services in its definition of a multichannel video provider, chairman Tom Wheeler has recently indicated that it will not move forward with the proposal any time soon.
The FCC’s tentative conclusion was that the definition should be extended to include Internet-based distributors that make available live streams of video programming on a subscription basis. That could mean Apple TV, but not Netflix. But it was met by some pushback from companies who said that it was too soon to put such services under a regulatory regime.
“We’re gratified that the court confirmed that rogue services like FilmOn who retransmit copyrighted material over the internet cannot find a loophole in statutes that were clearly designed to exclusively address local cable television services,” a spokesman for Fox said of Collyer’s decision. “We look forward to the trial on damages for FilmOn’s infringement.”
When Collyer’s decision was issued last month, FilmOn said, “The real losers are the citizens, for whom free access to the airways that belong to them is once again restrained by a judge’s incorrect statutory interpretation favoring big business over technological advancement.”