Courts Remain Split on TV-Station Streaming

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WASHINGTON — The federa l courts now appear squarely divided over whether TV-station signals can be streamed online from banks of remote antennas without triggering copyright — or retransmissionconsent — payments.

The ultimate outcome could affect how serious a competitor over-the-top video distribution becomes to traditional multichannel-video programming distributors (MVPDs), whether MVPDs team up with the likes of Aereo or FilmOn to avoid having to pay for TV-station signals they now complain they are overpaying for in retransmission-consent fights, or even whether providers co-opt that model themselves.

In a victory for broadcasters, a U.S. District Court in Washington, D.C., last week granted a preliminary injunction against FilmOn, a website that streams broadcast-TV signals. That follows a similar decision last December by a federal judge in California, who concluded FilmOn’s “Aereokiller” TV-station streaming service — later renamed FilmOnX — was indeed providing a public performance.

Neither FilmOn nor Aereo pay broadcasters, and both have said their respective services are neither a performance nor a retransmission. Rather, it’s a remote antenna service that uses the Internet to deliver the free TVstation signals to which viewers are entitled. Neither the California nor Washington, D.C., decisions enjoining FilmOn apply to states in the 2nd Circuit, where a federal appeals court upheld a New York district court’s rejection of an injunction against Aereo.

While both the 2nd Circuit and the New York court indicated that streaming over-theair signals from remote antennas was not a public performance, the D.C. court last week aligned squarely with the California court’s conclusion that streamed signals are a public performance and thus violate copyright protections.

“This court concludes that the Copyright Act forbids FilmOn X from retransmitting plaintiffs’ copyrighted programs over the Internet,” Judge Rosemary Collyer wrote for the D.C. court. “Plaintiff s are thus likely to succeed on their claim that FilmOn X violates Plaintiffs’ exclusive public performance rights in their copyrighted works … FilmOn is enjoined from streaming, transmitting, retransmitting, or otherwise publicly performing, displaying, or distributing any copyrighted programming over the Internet.”

The injunction was sought by the Big Four broadcast networks, as well as station-group owners Gannett and Allbritton Communications, which sued FilmOn and Aereo for copyright infringement.

In an August filing, Fox Television Stations continued to press its case for the injunction. Fox told the court that it was “incontrovertable” that FilmOn provides a public performance that infringes on its copyrights and those of other programers. At least two out of three district court judges appeared to agree but, in this case, the majority does not rule. Instead, Aereo and FilmOn may stream signals in some states but not others.

The divergent court opinions make it increasingly likely that the Supreme Court will ultimately have to weigh in on the issue, but that could take years.

FilmOn had not responded to an email request for comment by press time.

TAKEAWAY
The question of whether such TV-station online streaming services such as FilmOn and Aereo violate copyrights will likely be made in the U.S. Supreme Court.

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