It's 'Game On' for FilmOnSuits fly as OTT service takes page from rival Aereo in its defense 11/19/2012 12:01:00 AM Eastern
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
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
“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.