Weekly Update

FilmOn may turn out to be an Aereo-killer after all

FilmOn, formerly known as Aereokiller (a.k.a. BarryDriller) may turn out to have been prescient in its punning original moniker. A U.S. district court in Washington, DC, this week issued an emphatic ruling granting the broadcast networks’ petition for a preliminary injunction against the Aereo knockoff and setting up a potential showdown in the Supreme Court that could ultimately lead to Aereo and its ilk being declared illegal throughout the U.S.

The ruling comes not a moment too soon for the networks who were — and may still be — staring at the possibility of another major loss, in a related case pending in the Ninth Circuit Court of Appeals in California. A loss there, coupled with the networks’ earlier loss in the Aereo case in the Second Circuit in New York, might have ended the broadcasters’ hopes of overturning the Aereo ruling and preventing the unlicensed retransmission of their signals over the internet via miniaturized antennas. With the court in Washington strongly rejected the Second Circuit’s reasoning in the Aereo case, however and imposing a nationwide injunction against FilmOn, those hopes have life.

FilmOn was launched in California by billionaire Alki David, d.b.a. BarryDriller Content Systems, PLC, originally under the name Aereokiller. Like its sort-of namesake, FilmOn uses banks of tiny antennas to tune in broadcast signals, then transmits those signals to subscribers’ mobile devices over the internet after first running them through a remote DVR server. In court papers, in fact, FilmOn acknowledges that its system is similar “in ever relevant way” to Aereo. 

Aereokiller was sued by a group of broadcasters in California last year and in December the district court judge in that case, who was not bound by the Second Circuit’s earlier ruling in Aereo, ruled in favor of the broadcasters and issued a preliminary injunction against Aereokiller (since renamed FilmOn after a trademark dispute with Aereo). In deference to the Second Circuit, however, Judge George Wu limited the scope of the injunction to the Ninth Circuit, where his district court is based, prompting the broadcasters to bring additional suits against FilmOn in other jurisdictions, including Washington, DC.

Though FilmOn appealed that ruling to the Ninth Circuit, the broadcasters hoped that a win there would set up a clash between the Second and Ninth circuits over the legality of Aereo-like services, setting the stage for a final resolution by the Supreme Court that the broadcasters’ hoped would result in overturning the Second Circuit’s ruling in Aereo.

Since then things haven’t gone so well for the broadcasters, however. In a separate case in July, a three-judge panel of the Ninth Circuit upheld a lower court ruling denying an injunction against Dish Network’s AutoHop ad-skipping DVR feature in a case brought by a group of networks. In its opinion in that case, the Ninth Circuit explicitly embraced the Second Circuit’s reasoning in the 2008 Cablevision remote DVR case, which also formed the basis for the Second Circuit’s ruling in favor of Aereo (to say nothing of providing the blueprint for Aereo’s engineers).

That ruling essentially put the Ninth Circuit on record upholding the Second Circuit’s reasoning in the Aereo case, even if the Ninth Circuit’s opinion did not explicitly reference it. With the FilmOn appeal pending before the same court, the odds of getting an outcome different from the Aereo case in the Second Circuit — and eventual review by the Supreme Court — were not looking great for the broadcasters.

Judge Rosemary Collyer in Washington, DC, changed all that, however. Her nationwide injunction against FilmOn creates a genuine legal controversy that greatly increases the odds of the case reaching the Supreme Court.

Her 35-page opinion, in fact, reads like the first draft of the networks’ eventual Supreme Court brief, with its explicit criticism of the Second Circuit’s reasoning in both the Aereo and Cablevision cases:

FilmOn X contends that it does not perform publicly because FilmOn X facilitates a one-to-one relationship between a single mini-antenna and a viewer of Plaintiffs’ programs via an admittedly complex technological process. First, this is a charitable description of FilmOn X’s arrangement; while each user may have an assigned antenna and hard-drive directory temporarily, the mini-antennas are networked together so that a single tuner server and router, video encoder, and distribution endpoint can communicate with them all. The television signal is captured by FilmOn X and passes through FilmOn X’s single electronic transmission process of aggregating servers and electronic equipment. This system, through which any member of the public who clicks on the link for the video feed, is hardly akin to an individual user stringing up a television antenna on the roof…

Second, the aggregation of several new kinds of technology does not avoid the Copyright Act because Congress intended “device or process” in the Transmit Clause to include “all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.” … FilmOn X, which is a commercial service retransmitting Plaintiffs’ television performances, is in no meaningful way different from cable television companies, whose relationship with broadcasters such as Plaintiffs was the primary motivation for the 1976 Act’s enactment.

The plaintiffs rest your honor.