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Judge Orders 'Aereokiller' to Stop Streaming Live TV

California District Court Rules Internet Service Illegally Retransmits Copyrighted Content 12/28/2012 8:00 AM Eastern

A federal judge in California issued a preliminary injunction Thursday ordering the “Aereokiller” service to stop streaming live TV feeds from ABC, CBS, Fox and NBC over the Internet -- finding that it represents illegal retransmission of copyrighted content.

Judge George Wu, of the U.S. District Court for the Central District of California, issued the injunction Dec. 27 against Aereokiller, FilmOn.com and related services owned by Nigerian-born media entrepreneur Alkiviades "Alki" David. The services are being sued for copyright infringement by ABC, CBS, Fox, NBC and related parties, which had requested a preliminary injunction.

“We are pleased, but certainly not surprised, by the court's decision,” Fox spokesman Scott Grogin said via email Friday. CBS and NBC declined to comment.

Representatives for Aereokiller, FilmOn and David did not respond to requests for comment.

Aereokiller’s lawyers had cited a court ruling earlier this year by the U.S. District Court for the Southern District of New York denying a request by broadcasters seeking to shut down Aereo -- a separate company whose backers include media mogul Barry Diller.

But Judge Wu rejected the legal interpretation of the New York court, which relied on a previous ruling by the U.S. Court of Appeals for the Second Circuit that Cablevision Systems’ network DVR was a private (not a public) performance.

The California district court “would find that Defendants' transmissions are public performances, and therefore infringe Plaintiffs' exclusive right of public performance,” Wu wrote in a Dec. 20 brief outlining his tentative ruling granting an injunction. “The Court finds that Defendants' unique-copy transmission argument based on Cablevision and Aereo is not binding in the Ninth Circuit.”

Judge Wu’s injunction covers only the geographic boundaries encompassing the U.S. Court of Appeals for the Ninth Circuit.

New York-based Aereo declined to comment on the case. Aereo won a reprieve with the Southern District of New York court’s ruling, but the startup is still facing copyright-infringement litigation filed by major broadcasters.

In his brief last week, Judge Wu wrote that the broadcasters demonstrated irreparable harm.

“Revenues from retransmission consent licensing have become increasingly important to the broadcast industry, and are used to fund the development and acquisition of broadcast programming,” he wrote. In addition, “Defendants' service also competes with Plaintiffs' ability to develop their own Internet distribution channels.”

As of Friday morning, live TV feeds for the New York affiliates of ABC, CBS and NBC were still available through FilmOn.com. FilmOn and Aereokiller were ordered to file a report affirming and detailing their compliance with the injunction by Jan. 3.

Alki David has run afoul of broadcasters before. TV broadcasters sued FilmOn in 2010 over a $9.95-per-month service that included what it called "premium free-to-air television channels" including those from CBS, ABC, NBC and Fox. In that case, a judge issued a temporary restraining order blocking the service; FilmOn eventually settled with the networks and agreed to pay $1.6 million.

Currently, FilmOn.com advertises local channels available via its website for $9.95 per month (or $99 per year) as well as remote DVR storage space ranging from $1 per month for three hours to $190 per month for 300 hours.

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