FilmOn founder Alki David says he plans to sue CBS and its CNET tech Web site for "illegal distribution of DRM
[digital rights management] removal software as well as the illegal distribution of file sharing software with
malicious intent to infringe on copyright."
That is according to an e-mail from David on the morning of Dec. 27.
David posted a YouTube video last week attacking CNET for what he alleges is the site's own copyright infringement
even as CBS is suing him for copyright infringement. He told Multichannel News he was posting another video to outline the lawsuit.
The countersuit would be a response to a copyright infrinement suit by CBS and the other networks and their
affiliated studios. A judge last month issued a temporary restraining order against FilmOn, while it considers the larger issue of its legality. FilmOn streams TV station signals online for $9.95 a month. It has not negotiated retransmission-consent payments with broadcasters, but David says it does not need to.
He argues that he is not violating any copyright laws, and that his service fits the definition of a cable system when it
comes to the statutory license to retransmit broadcast signals over the air per U.S. copyright law. On the other hand, he avers that it's not a cable system when it comes to the Communications Act requirement to obtain express permission from a station before such retransmission.
David says he saw the site as a business-to-business aid to broadcast and cable programmers, but was not shying away from a fight. "If somebody wants a fight, bring it on," he told MCN in early October before the broadcaster suit was filed.
"Mr. David is clearly not feeling very good about his prospects in the court system [a reference to the broadcaster suit against him]," CBS said Monday, reiterating its response to the initial YouTube video last week. "He is hardly an expert on intellectual property rights. CNET respects such rights, and meanwhile the court has issued a temporary restraining order against Mr. David and his company. We continue to think that the court is the best venue to determine the outcome of this case, one in which unauthorized use of our content has been distributed illegally."
The broadcast networks/station groups have also sued online video site ivi TV, which is also streaming TV station
sites without retrans deals. The New York court in the ivi case has not issued a temporary injunction. Meanwhile, a
Seattle court is still considering ivi's request for a declaratory ruling that it is not in violation of copyright.
It, too, says it is allowed to redistribute TV station content under a blanket copyright license, but does not fit
the FCC definition of MVPD subject to retrans payments.
The FCC has yet to weigh in beyond telling IPTV distributor in the context of a program carriage complaint last
spring that it had not made a convincing case to the media bureau that it qualified as an MVPD subject to program
As the content distribution model increasingly moves online, who can deliver what to whom is going to become
increasingly important. For example, the FCC is applying online content access conditions to the Comcast/NBCU joint venture, the first big media meld that implicates the over-the-top video space.