A federal judge rejected notions that the Supreme Court’s 2014 Aereo ruling opened the door to over-the-top Internet video services claiming a compulsory license to stream broadcast stations.
U.S. District Judge Rosemary Collyer’s decision against FilmOn X and in favor of broadcasters was unsealed on Wednesday, shedding light on her rationale for finding that FilmOn was not entitled a statutory license to stream those signals. The ruling contradicts an equally important ruling by U.S. District Judge George Wu in the Ninth Circuit Court in July which ruled that there was no reason services like FilmOn should not be treated as cable companies.
The Copyright Act of 1976 gives cable systems a statutory license access to broadcast station signals, and FilmOn had argued that this regime should extend to Internet services. In the Supreme Court’s 2014 ruling against Aereo, a service similar to FilmOn, the justices highlighted the “overwhelming likeness” between Aereo and a cable system.
Colyer’s decision diverges from one in July, in which Judge Wu said that federal copyright code does not distinguish between traditional cable TV providers and online services like FilmOn with respect to rights to a compulsory retransmission license. Fox is appealing that decision. The Hollywood Reporter suggested that Colyer’s decision was biased due to her location in pro-status quo Washington D.C., while Judge WU’s more progressive ruling came from California where innovation and consumer rights are king.
The FCC has an ongoing proceeding on whether to include certain Internet video services in its definition of a multichannel video provider.
The FCC’s tentative conclusion was that the definition should be extended to include Internet-based distributors that make available live streams of video programming on a subscription basis. That could mean Apple TV, but not Netflix. Meanwhile FilmOn continues to stream its 600 channels of licensed, original and wholly owned content to its 65 million monthly users.
When Collyer’s decision was issued last month, FilmOn said, “The real losers are the citizens, for whom free access to the airways that belong to them is once again restrained by a judge’s incorrect statutory interpretation favoring big business over technological advancement.”
