FilmOn X (formerly Aereokiller) has filed the opening brief in its challenge to a Nov. 12 D.C. U.S. District Court dismissal of its request that the court rule its online TV station streaming service is entitled to a compulsory license.
Judge Rosemary Collyer ruled that FilmOn X, which streamed on demand and day-and-date video online, was liable for infringing the plaintiff's (Fox and other broadcast networks) performance rights under the Copyright Act and was not eligible for the compulsory license.
The issue is whether online video distributors are effectively MVPDs eligible for the statutory license that allows them to avoid negotiating for individual network broadcast content. That issue is unsettled, with the Copyright Office saying they aren’t eligible but also saying that could change depending on what the courts and the FCC decide. The FCC is mulling defining some over-the-top distributors as MVPDs, and FCC chairman Tom Wheeler has pointed to the need to prevent “old rules” from hampering online video competitors.
California district judge George Wu ruled last year that FilmOn X was entitled to the compulsory license. Fox challenged that ruling in the Ninth Circuit Court of Appeals and the National Association of Broadcasters slammed the decision.
In its appeal to the U.S. Court of Appeals for the D.C. Circuit, FilmOn X argues that Congress intended for the compulsory license to extend to new technologies, that FilmOn X fits the definition of a cable system, making secondary transmissions by "wires, cables, microwave or other communications channels," but that the district court decision renders "other communications channels" meaningless
FilmOn X wants the court either to reverse and stay the lower court decision pending the outcome of the California case or remand the decision for further proceedings.
"If this Court holds as a matter of law that Internet retransmission services are ineligible for a Section 111 [compulsory] license, it would...create an unnecessary obstacle to broad public access to broadcast television over the Internet," FilmOn X said.
The FCC under chairman Tom Wheeler proposed redefining some day and date TV station streaming services—like FilmOn X—as MVPDs but paused that proceeding last December, saying that "there are so many innovative things going on right now in the video space and we want to let it continue to innovate." Wheeler has shown no signs of hitting the "play" button anytime soon.
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