In a victory for broadcasters, a D.C. U.S. District Court judge has dismissed a request by FilmOn X (formerly Aereokiller) that the court rule its online TV station streaming service is entitled to a compulsory license.
Judge Rosemary Collyer ruled this week that FilmOn X, which streamed on demand and day-and-date video online, was liable for infringing the plaintiff's (Fox and other broadcast networks) performance right under the Copyright Act and was not eligible for the compulsory license.
The issue is whether online video distributors are effectively MVPDs eligible for the statutory license that allows them to avoid negotiating for individual network broadcast content. That issue is unsettled, with the Copyright Office saying they aren’t eligible, but also saying that could change depending on what the courts and the FCC decide. The FCC is mulling defining some over-the-top distributors as MVPDs, and FCC chairman Tom Wheeler has pointed to the need to prevent “old rules” from hampering online video competitors.
In one of those courts, California district judge George Wu ruled earlier this year that FilmOn X was entitled to the license. Fox has challenged that ruling in the Ninth Circuit Court of Appeals.
A spokesman for FilmOn X said it was disappointed with the D.C. decision but that the real losers were viewers, "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."
"The public's right to employ technology to access free-to-air television was at the center of the California court's ruling issued earlier this year. In that case, the Judge [George] Wu applied the plain language of the copyright act, finding that FilmOn X may obtain a compulsory license. In light of the conflicting rulings, this may be an issue that is ultimately resolved by the Supreme Court," the spokesman said. Collyer denied a counterclaim by Fox of copyright infringement against FilmOn X owners, which provided some solace to the company.
"FilmOn.TV is pleased that the court acknowledged there was no evidence of misconduct by FilmOn TV Networks, FilmOn.TV, FilmOn.com or any of their officers," said the spokesman.
FilmOn X provided online video subs access to TV stations via remote off-air antennas and DVRs, similar to the Aereo service from former top Fox exec Barry Diller, which shuttered after the Supreme Court ruled it was providing a public performance and needed to negotiate for carriage of programming and TV signals.
“We are very pleased with Judge Collyer's ruling,” said a Fox spokesperson.