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CBS Broadcasting Inc. v., Inc.

District court issues second contempt finding against unauthorized content redistributor, finding that violated consent order by using mini-antenna technology to distribute copyrighted content without authorization.

The plaintiffs in this case, a group of major television networks, brought suit several years ago against defendant, Inc., alleging that FilmOn committed copyright infringement by, among other things, retransmitting plaintiffs’ copyrighted content without authorization. Plaintiffs and FilmOn settled the case in August 2012, and the court entered a judgment and permanent injunction against FilmOn with the consent of the parties.

The injunction prohibited FilmOn and its affiliates “from infringing, by any means, directly or indirectly, any of plaintiffs’ exclusive rights under Section 106(1)-(5) of the Copyright Act, including but not limited to through the streaming over mobile telephone systems and/or the Internet of any of the broadcast television programming in which any Plaintiff owns a copyright.”

On July 3, 2014, plaintiffs asked the court to find the defendant, and its CEO, in contempt of the injunction for the second time. (The court previously found FilmOn in contempt in September 2013.) In their most recent contempt motion, plaintiffs asserted that FilmOn violated the injunction by using mini-antenna technology to distribute copyrighted content even after the Supreme Court’s recent decision in American Broadcasting Companies, Inc. v. Aereo, Inc. The court agreed with the plaintiffs and granted their motion, finding FilmOn in contempt for a nine-day period following the Aereo decision.

FilmOn advanced two main arguments against a contempt finding. It argued that because “the Injunction does not expressly mention or prohibit the mini-antenna/DVR technology and the related Teleporter service,” it cannot be said to clearly and unambiguously prohibit their use. Second, FilmOn argued that “in light of the Supreme Court’s findings in Aereo, FilmOn qualifies as a cable system and is entitled to the benefits and responsibilities of the compulsory license scheme under Section 111 of the Copyright Act.” The court found neither of these arguments persuasive.

First, the court rejected FilmOn’s argument that the injunction must list every prohibited potential transmission mechanism. The fact that the injunction did not explicitly mention the mini-antenna technology does not, the court noted, render it unclear. The court could not be expected to anticipate every means by which FilmOn could violate the injunction; this is why FilmOn was enjoined from violating plaintiffs’ exclusive rights under Section 106 of the Copyright Act by “any means.”

Second, the court concluded that FilmOn mischaracterized the Supreme Court’s holding in Aereo. Although the court conceded that the U.S. Supreme Court likened the Aereo system to a cable system, it rejected FilmOn’s suggestion that that analogy was tantamount to “a judicial finding that Aereo and its technological peers are, in fact, cable companies entitled to retransmission licenses under §111 of the Copyright Act.” In any event, the district court noted that a controlling Second Circuit case, WPIX, Inc. v. ivi, Inc., settled that issue by finding that Internet retransmission systems like FilmOn’s are not entitled to compulsory licenses under Section 111 of the Copyright Act.

FilmOn was ordered to pay $90,000, representing $10,000 for each of the nine days that it violated the injunction.