New York District Judge Naomi Reice Buchwald has found FilmOn in contempt for continuing to deliver network TV station signals over the Internet after the Supreme Court found similar service Aereo in violation of copyright.
Judge Buchwald said that based on the law of the Second Circuit, which has ruled that Internet streaming does not qualify for a compulsory license, "FilmOn is not entitled to a license under § 111, and its retransmissions clearly and unambiguously fall under the scope of conduct barred by the Injunction."
FilmOn says it will appeal the decision.
"We find FilmOn in civil contempt of court for its violation of the Injunction," she said in an opinion released Friday. "FilmOn must pay $10,000 for each of the nine days of its noncompliance. Therefore, we impose a sanction of $90,000. We also reiterate that while it appears that defendant has ceased streaming plaintiffs’ programming, such conduct is covered by the Injunction and future retransmission of plaintiffs’ copyrighted content without a license will subject defendant to significant penalties per day of noncompliance."
FilmOn will also have to pay attorneys fees.
Fox and CBS had asked the court to find FilmOn in contempt and had asked for the fees and fines.
"Mr. David [FilmOn founder Alki David] has proven time and again that he has utter disregard for the decisions of the court. The court has indicated that FilmOn is in contempt and has set monetary sanctions,” Fox said in a statement.
David told B&C Friday that he planned to appeal the decision, adding: "Judge Buchwald is unqualified and wrong."
In a hearing Tuesday (July 23) in her court, Judge Buchwald, who has already found FilmOn in contempt once, said she was likely to do so again. Her court had enjoined FilmOn from delivering TV station signals, but after the Second Circuit Court of Appeals (in New York) overturned an injunction against Aereo, FilmOn concluded it, too, could deliver signals with remote antennas in areas under the New York court's purview.
Buchwald has plenty of history with the issue. In 2011, she enjoined a similar service, ivi TV, from streaming TV stations signals, indicating it, too, would not likely be deemed a cable system under copyright law. That decision was ultimately upheld in a federal appeals court.
The Supreme Court said that Aereo, like cable operators, provided a public performance subject to copyright, but it did not say it was a cable system. And in response to a request from Aereo, the Copyright Office said it felt confident that the law of the land was still that internet transmissions are not subject to the compulsory license available to cable operators, though it would hold on to the application in case the courts or FCC weighed in otherwise.
FilmOn continued to deliver network TV station signals after the court decision (FilmOn concedes it continued to deliver TV station signals after the Supreme Court ruling), saying that it is a cable system subject to the license. It did stop delivering network signals, or at least says it tried to, after broadcasters charged that was in contempt of the court, and the FilmOn lawyer apologized to the judge for that delay. The judge countered that it appeared only to have been in response to the broadcast filing.