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Fox Television Stations, Inc. v. FilmOn X LLC

Adding to split among courts on this issue, D.C. district court issues preliminary injunction against internet television service that remotely records and transmits unique copies of over-the-air television content to individual internet viewers, pursuant to their requests, finding that activity infringes content owners’ rights in their copyrighted works under Copyright Act.

Adding to the split among courts in recent decisions considering the legality of services that transmit over-the-air television programs via the internet, without license, the U.S. District Court for the District of Columbia concluded that defendant’s services constituted illegal transmissions in violation of the Copyright Act.

Defendant FilmOn X provides an internet television service that, at the specific request of subscribers, captures over-the-air television content on small antennas – each of which is assigned to a requesting subscriber and networked together by a circuit board – and streams the content to subscribers over the internet. Each subscriber submits a request for the content to be recorded, and the copy generated is unique to the subscriber. Defendant’s technology is, without dispute, substantially identical to that at issue in recent decisions by the district court in the Ninth Circuit in Fox Television Systems, Inc. v. BarryDriller Content Systems, PLC (BarryDriller) and by the Second Circuit in WNET, Thirteen v. Aereo, Inc. (Aereo). As in those cases, plaintiffs were broadcast television networks alleging that the defendants’ internet television services were unlicensed transmissions of copyrighted television programs.

On plaintiffs’ motion for preliminary injunction, the district court focused its inquiry on the networks’ likelihood of success on the merits. After reviewing the similar cases from the Second Circuit and the district court in the Ninth Circuit, the court engaged in its own analysis of the Copyright Act. Although the Second Circuit ruled, in Aereo, that an internet television service provider that transmitted a unique copy to the individual user was not engaged in a public performance of that content, the district court rejected that approach. Looking at the breadth and purpose of the Transmit Clause, the district court concluded that Congress was not concerned with whether the service provider generated a unique copy of content for transmission to an individual subscriber but rather with whether the service provider was transmitting copyrighted works to members of the public. Under the Transmit Clause, FilmOn X’s act of streaming the television content to the public constituted a public performance, regardless of the “device or process” used by FilmOn X and regardless of whether members of the public “receive it in the same place or in separate places and at the same time or at different times.”

Although the court found no ambiguity in the statute, it noted that the legislative intent of the Transmit Clause was to be construed broadly to encompass new technologies such as those adopted by FilmOn X. The court rejected the argument that FilmOn X’s assignment of a unique antenna and its transmission of a unique copy to each subscriber, pursuant to a subscriber request, rendered its performances “private.” First, FilmOn X’s antennas are networked together, such that all subscribers share the same transmission lines and equipment. Second, the Transmit Clause is broad enough to encompass any sort of transmitting apparatus or electronic retrieval system. Finally, FilmOn X is a commercial service with multiple paying subscribers, similar to a cable company, and thus its service is not the same as an individual capturing broadcast content on his or her own antenna for private consumption.

In line with the district court in the Ninth Circuit’s decision in BarryDriller, the D.C. district court found that the networks were likely to succeed on the merits and would likely suffer irreparable injury to their lawful internet distribution business, contractual relationships, and retransmission rights. Additionally, the balance of harms was found to tip in the networks’ favor, as did the public interest. Defendant could not complain of “harms” suffered as a result of illegal conduct, and enforcing the Copyright Act promotes the public interest. The district court noted its authority to impose a nationwide injunction but, in the interest of comity, excluded the Second Circuit from the scope of its injunction, which is otherwise nationwide.

For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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