It's 'Game On' for FilmOn

Suits fly as OTT service takes page from rival Aereo in its defense

By John Eggerton -- Broadcasting & Cable, 11/19/2012 12:02:00 AM

TV broadcasters are facing a second front in their battle over online transmission of their signals via remote antenna/DVR technology. Like in the first front, the entrenched troops are wearing wingtips and firing off legal missiles.

In August, Aereo TV got a green light from a district court to continue to offer local TV station signals, at least until the court hears arguments in a broadcaster challenge to the service.

Now FilmOn, which was enjoined by a court two years ago from streaming TV station signals without paying for them, has adopted Aereo’s technology and started streaming stations online again, using the district court’s decision not to enjoin Aereo as ammunition.

Aereo is the Barry Diller-backed online video service that uses a remote antenna farm and DVR functionality to deliver inmarket TV station signals, along with other video programming. Broadcasters say it is providing retransmission without compensation; Aereo counters it is offering online access to a remote over-the-air antenna.

That FilmOn is back on has not pleased the folks at Fox, who filed suit back in August against the company—and its chairman and founder, Alki David—over this latest iteration. (FilmOn, which competes with Aereo, was previously known as Aereokiller and was launched by not-coincidentally named Barry Driller Inc.) Two weeks ago, the other major networks joined that suit, and FilmOn filed a countersuit against Fox, alleging it was discouraging potential FilmOn clients such as Apple and Microsoft from selling the FilmOn app that enables accessing the remote antenna/DVR functionality.

“We welcome the opportunity to let the court determine the legitimacy of Mr. David’s business practices,” FilmOn said in a statement.

Fox lawyers are expected to argue that FilmOn’s provision of TV station signals violates its court injunction and its promise not to infringe “by any means, directly or indirectly, any of [the networks’] exclusive rights under…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.”

FilmOn says in its Fox suit that litigation involved its old distribution technology, not the Aereo-like technology it is now using to deliver TV stations on the Internet.

The networks, in their filing earlier this month, said that Aerokiller was another in a long line of attempts to retransmit broadcast TV without compensating broadcasters for that public performance.

“Because Plaintiffs have the exclusive right to publicly perform their works and Aereokiller has no license from any network to retransmit their programs over the Internet, Aereokiller should be enjoined from infringing Plaintiffs’ copyrights through its FilmOnX website and service,” the networks argued.

“Maybe the Networks/Affiliates would be a lot more relevant and appeal to more than just baby boomers if they embraced FilmOn and others like us and worked with us to reach more eyeballs,” replied FilmOn’s David, who said he offered to pay broadcasters retrans fees under the new, Aereo-like transmission model, even though he says he doesn’t have to.

They will all have their chance to argue their cases. Oral argument is set for Dec. 6 in a California District Court.

E-mail comments to jeggerton@nbmedia.com and follow him on Twitter: @eggerton