September 9, 2013
Television broadcasters including Fox, NBCU, Disney/ABC, Allbritton Communications and Telemundo filed a copyright infringement suit in May against Alki David’s TV digital streaming service FilmOn X (formerly called BarryDriller), which works similarly to the controversial Aereo service, backed by Barry Diller’s IAC. On Thursday, a federal judge in Washington ruled in favor of the broadcasters, issuing a near-nationwide preliminary injunction against FilmOn X.
“The ruling is a significant one that could go a long ways towards eventually setting up a Supreme Court showdown over whether the relaying of over-the-air TV signals to digital devices constitutes a transmission ‘to the public’ and a violation of broadcasters’ public performance rights,” explains The Hollywood Reporter.
“U.S. District judge Rosemary Collyer writes that she has considered the 2nd Circuit’s decision to affirm the denial of an injunction against Aereo, but found the Barry Driller ruling ‘more persuasive,'” notes the article. “That’s in reference to a California judge who had also granted an injunction against David’s service, then called BarryDriller.”
“This Court concludes that the Copyright Act forbids FilmOn X from retransmitting Plaintiffs’ copyrighted programs over the Internet,” the judge writes. “Plaintiffs are thus likely to succeed on their claim that FilmOn X violates Plaintiffs’ exclusive public performance rights in their copyrighted works. Because there is no dispute of fact between the parties — indeed, each has won and each has lost in a different forum on these same facts — the Court will grant Plaintiffs’ motion for a preliminary injunction.”
FilmOn X enables viewers to access live and recorded TV content over the Internet via small antenna technology that is similar to Aereo’s approach.
“One of the big questions for Judge Collyer is how to square this technology with what was deemed legal in a case concerning Cablevision’s remote-DVR,” suggests THR. “In 2008, an appellate court had blessed Cablevision’s technology because ‘each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber.'”
According to Judge Collyer: “While each user may have an assigned antenna and hard-drive directory temporarily, the mini-antennas are networked together so that a single tuner server and router, video encoder, and distribution endpoint can communicate with them all… This system, through which any member of the public who clicks on the link for the video feed, is hardly akin to an individual user stringing up a television antenna on the roof.”
“We are still in many other cities across the USA,” responded David. “We are opening Philadelphia on Monday. We will win DC back on appeal. You mad Nets? Yes you so mad.”
For additional details, Judge Collyer’s full 35-page decision is available online.