Policy

Fox to Court: FilmOnX Violates Transmit Clause

Says Aereo-Like Streaming Service Provides Performance Without Payment 8/27/2013 5:12 PM Eastern

WASHINGTON — Fox Television Stations continued to press its case for a preliminary injunction against FilmOn (formerly Aereokill), an Aereo-like over-the-top provider of TV station signals and other content, in a filing with the U.S. District Court for the D.C. Circuit.

 Fox told the court that it was "incontrovertable" that FilmOnX, from FilmOn founder Alki David, is providing a public performance that infringes on its copyrights, as well as those of other programers.

Fox, ABC, NBC and Allbritton Communications filed suit against FilmOn's then-Aereokiller TV-station streaming service in that court (Allbritton owns ABC affiliate WJLA-TV there, though it is selling the station to Sinclair).

They sought the temporary injunction, which FilmOn is fighting.

 Both FilmOn and Aereo are being sued by the broadcast networks, who allege they both are violating copyright protections by retransmitting TV-station content without paying for it.

In August 2012, Aereo got a green light from a district court to continue to offer local TV station signals, at least until the court hears arguments in a broadcaster challenge to the service. Broadcasters had sought an injunction in that case as well.

FilmOn, which was enjoined by a court two years ago from streaming TV station signals without paying for them, has adopted Aereo’s technology — banks of remote antennas — and started streaming stations online again, using the district court’s decision not to enjoin Aereo as ammunition. In fact, when accessing FilmOnX TV station signals online, the screen first shows a white box announcing: "Connecting to remote antenna."

But Fox says the remote antenna argument does not wash.

"FilmOnX argues that it simply provides equipment that allows viewers 'to do what they are otherwise able to do in their own homes — watch free-to-air network television broadcasts,' " Fox wrote. "But that does not mean that FilmOnX falls outside the Transmit Clause. Indeed, television providers like Comcast, Cox, DISH, DirecTV, Verizon, and AT&T also offer broadcast services by providing equipment that allows their subscribers 'to do what they are otherwise able to do in their own homes — watch free-to-air network television broadcasts[.]' Id. They are all subject to the Transmit Clause. The simple fact is that, under the Transmit Clause, if a party transmits a performance of a copyrighted work to the public by any device or process — via a big antenna or mini-antennas, via cable, via the insertion of an intermediate copy or without such a copy, or via any combination of such devices or processes— they are liable for copyright infringement where, as here, they are unlicensed."

The networks brought the action in the D.C. court after the 2nd U.S. Circuit Court of Appeals declined a petition to enjoin Aereo from delivering its TV-station streaming service. The former Aereokiller provides online video subscribers access to TV stations via remote off-air antennas and DVRs, similar to the Aereo service, backed by former top Fox executive Barry Diller.

A federal court in California last December enjoined FilmOnX from operating in nine Western states after concluding it violated the law .But that injunction did not apply to other states after a U.S. District Court in New York and the 2nd Circuit declined to enjoin Aereo and suggested it was not a performance in violation of copyright.

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