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FilmOn X LLC v. Window to the World Communications Inc.

Concurring with New York and D.C. courts in related cases, Illinois district court finds FilmOn X’s Internet-based streaming service is not “cable system” under Section 111 of Copyright Act, and is not entitled to compulsory license.

FilmOn X LLC originally filed a declaratory judgment action against Window to the World Communications Inc. (WTTW) in 2013, seeking a ruling that the technology FilmOn X used to enable its subscribers to access WTTW’s broadcast programming from an Internet-enabled device did not infringe any WTTW copyrights. WTTW counterclaimed for copyright infringement.

Following the U.S. Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. in 2014, FilmOn X filed an amended complaint arguing that it was entitled to a compulsory license as a “cable system” under Section 111 of the Copyright Act. The parties cross-moved for partial summary judgment.

Concurring with court rulings in related cases in the Southern District of New York and the District of Columbia, the district court held that FilmOn X’s Internet-based retransmission service did not meet the definition of a “cable system” under Section 111(f)(3) of the Copyright Act, and is therefore not entitled to a Section 111 compulsory license. 

Section 111’s definition of a “cable system” requires a “facility” that (1) “receives signals transmitted or programs broadcast” and (2) “makes secondary transmission of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public.” FilmOn X met the definition’s first requirement because the system received “programming made by network stations,” but failed to meet the definition’s second requirement because FilmOn X’s “facility” makes secondary transmissions to the Internet as opposed to sending them directly to the subscribers’ digital device.

The Illinois district court also concluded that FilmOn X’s Internet system “fails to encompass the distribution medium and does not retransmit the signals directly to the subscriber” and therefore does not qualify as a “cable system” under Section 111(f)(3).