FilmOn Turned Off – Another Court Rejects Aereo’s “Unique Copies” Interpretation

Yesterday, the District Court for the District of Columbia handed a win to broadcasters in their ongoing litigation against FilmOn X (formerly Aereokiller). The Court, which has overseen the case between broadcasters and Film On X since the former filed in late May, issued a preliminary injunction to stop the defendants from “retransmitting Plaintiff’s copyrighted programs over the Internet.”  FilmOn X’s business model has been well-documented; they operate a subscription-based television service which retransmits broadcast television captured by tiny dime-sized individual antennas over the Internet.  They, in turn, sell the programming to individual subscribers, in the same vein as Aereo, without any licensing fees or arrangement with the broadcasters.

The D.C. District Court decision is a decisive victory involving what has been a fairly contested legal issue. In fact, the court was originally scheduled to hold a hearing to evaluate the preliminary injunction on September 20th, but since the facts overwhelmingly supported a finding for the plaintiffs, it issued the injunction ahead of schedule.

The Court found that broadcasters were likely to succeed on the merits of their claim, as the “Copyright Act forbids FilmOn X from retransmitting Plaintiff’s copyrighted programs over the Internet.” The Court’s decision relied upon their interpretation of the Transmit Clause of the Copyright Act, which “confers on copyright holders” the right to “perform the copyrighted work publicly.” According to the Court, the plain language of the Transmit Clause is unambiguous, and FilmOn X’s service clearly falls within its scope:

FilmOn X transmits (i.e., communicates from mini-antenna through servers over the Internet to a user) the performance (i.e., an original over-the-air broadcast of a work copyrighted by one of the Plaintiffs) to members of the public (i.e., any person who accesses the FilmOn X service through its website or application) who receive the performance in separate places and at different times (i.e. at home at their computers or on their mobile devices).

The Court rejected FilmOn X’s argument that, because it created a one-to-one relationship between transmissions and viewers, its transmissions constituted private performances. “First,” noted the Court, “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.” Ultimately, the Court held that FilmOn X’s system is “hardly akin to an individual user stringing up a television antenna on the roof” and saw no meaningful difference between the service and traditional cable television services.

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