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Fox sues startup over broadcast streaming

Net files suit against Barrydriller.com over transmission of KTTV signal

Fox sees nothing funny about Alki David’s irreverently titled Barrydriller.com, which streams broadcast TV to an array of digital services, like Aereo, in which Barry Diller is a lead investor. The network filed suit Friday against the site in U.S. District Court in Los Angeles, charging that Barrydriller.com violates its right of public performance by streaming the signal of its Los Angeles affiliate, KTTV, to subscribers without authorization.

David is a colorful entrepreneur whose earlier effort to stream major network affiliates’ broadcast signals via FilmOn.com was halted by a New York federal judge in 2010. But he has been determined to pursue a business model offering broadcast streaming.

Last month, a New York federal judge, Alison Nathan, declined to immediately put a halt to Aereo, which streams signals to subscribers via thousands of dime-sized antennas. By declining to issue a preliminary injunction, Nathan delivered a blow to the networks, which say that such services undercut their business models. They are in the midst of pursuing an appeal.

After the Aereo decision, David launched Barrydriller.com, which also uses a system of antennas in a bid to perhaps withstand legal scrutiny. The name of his service is a nod (or maybe even a dig) at Aereo’s most famous investor — It’s an “homage to a great guy and at the same time it’s drilling him a bit,” David told the Wall Street Journal — but David also said the service comes at a lower price point, $5.95 per month, and that he’ll pay retransmission fees to the networks.

But Fox challenges the legality of the antenna transmissions in its suit. “It simply does not matter whether BarryDriller uses one big antenna to receive plaintiff’s broadcasts and retransmit them to your finger or millions of antennas ‘so tiny (one) fits on the tip of your finger,’ as defendants claim it does. No amount of technological gimmickry by defendants changes the fundamental principle of copyright law that those who wish to retransmit plaintiffs’ broadcasts may do so only with plaintiffs’ authority.”

In an email, David said that the “networks should be loving us, not hating us. Whether they like it or not, free TV is meant to be free. BarryDriller/FilmOn is constitutionally entitled to distribute the free-to-air channels.”

David has said that they have deployed millions of antennas across the country, and that they make “a private connection with a personal antenna so it is not a public performance.” He said that they created such a model three years ago and that their antennas are more functional than those used by Aereo.

David said that BarryDriller is in four major markets — New York, Los Angeles, Chicago and Minneapolis — and plans to launch in San Francisco and Dallas in the next two weeks. He also said that FilmOn is launching its first broadcast channel in the country, KILM-TV Channel 64, in Los Angeles starting on Sept. 1.

Fox’s suit was filed by Richard L. Stone, Kenneth Klein and David Singer at Jenner & Block.

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