Online television services have advanced potentially a half step with the recent ruling favoring plaintiff FilmOn, an on-demand enterprise that attracted a lot of attention as part of broader, highly publicized cases involving new technologies. U.S. District Judge George Wu issued his preliminary ruling, finding that, if online television services like FilmOn are subject to the same copyright rules as traditional broadcast stations, then they should be allowed the same compulsory license rights under the Copyright Act.
FilmOn up until now had been tangled up in last year’s much-watched U.S. Supreme Court decision involving Aereo. In that case, the justices decided that online television services were subject to the same copyright rules as over-the-air broadcasters, notwithstanding the elaborate technology arguments–what will lawyers do without figuring whether thousands of tiny antennae really are part of a content pipeline?–made by powerhouse counsel for entertainment mogul Barry Diller, Aereo’s financier and chief advocate.
As the saying goes, if you’re going to give me all the responsibilities of an adult, then give me all the freedoms of an adult. (Or maybe that’s just what I use to tell my dad?) If online services were found to violate the Copyright Act’s transmit clause the same way that over-the-air broadcast programs can, then they should be awarded the same §111 license that cable and other broadcasters may obtain. Right?
The case, Wu noted, has won such attention and possesses such complexity, significance, and conflict in laws that he effectively left everything in place, his own ruling aside. He said he anticipates appeals to higher courts.
Although the internet theoretically allows online products like this blog endless space for content, a lot of electrons could go flying to start to try to recap the saga of FilmOn, also once known in a different iteration as Aerokiller, and the disputes between its chief backer, Alkiviades David, a shipping heir (shown above), and Diller. Both said they hoped to transform television content delivery systems, profiting by offering less expensive, technology-based alternatives to increasingly costly cable and over-the-air-systems. (To see this blog’s multiple entries, readers can use the search box in the left rail and type in an array of terms, including Aereo, Aerokiller and etc).
The various attempts by the services, including yet another called ivi, to argue that they were not infringing broadcasters’ copyrights, however, split two appellate circuits (the Ninth, covering Hollywood, and the Second, overseeing Manhattan) and the supremes eventually stepped in, ruling on Aereo and paving the way later for consideration of the arguments particular to FilmOn.
Analysts have been quick to note that even if Wu’s ruling holds up, FilmOn has a long path to trod before it affects television in its broadcast or cable transmission. But its owners appear for now to have deep pockets and a willingness to trudge through what has become a legal thicket.