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The National Association of Broadcasters has told the U.S. Court of Appeals for the Ninth Circuit just what it thinks of a district court decision favoring FilmOn, and it doesn't think much of it.
California district judge George Wu ruled last summer that online video distributor FilmOn was entitled to a compulsory license. Fox, joined by other broadcasters, challenged that ruling in the Ninth Circuit Court of Appeals and NAB has weighed in with an amicus brief in support of that challenge.
A compulsory license would allow FilmOn to deliver TV station programming from the major networks at a below-market rate and without having to negotiate for it individually through retrans deals. That's because it is not defined as a cable operator by the FCC, and so is not subject to retransmission consent requirements.
"FilmOn currently faces no regulations requiring it to respect the local program exclusivity arrangements between stations and their program suppliers," said NAB. "While it claims to have adopted its own voluntary measures designed to protect local exclusivity, there is no assurance that FilmOn will maintain them absent FCC mandate. And the record shows that FilmOn’s self-imposed restrictions will be ineffective. Granting an entity like FilmOn a compulsory license to broadcast content could therefore have a devastating impact on local broadcasting. The district court should be reversed."
The courts are hardly in agreement on FilmOn and the license. In November, another U.S. District judge, Rosemary Collyer, ruled that FilmOn, which streamed on demand and day-and-date video online, was liable for infringing the plaintiff's (Fox and other broadcast networks) performance right under the Copyright Act and was not eligible for the compulsory license.
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