9th Circuit Judge in FilmOn Case Suggests Changing Copyright Law ‘Problem for Congress’

An appeals judge hearing oral arguments in online TV retransmission service FilmOn X’s appeal of a preliminary injunction brought by broadcasters in California suggested that if broadcasters want existing copyright policy changed, they should look to Congress rather than the courts. “In the end, isn’t this really a problem for Congress?” asked Judge Diarmuid O'Scannlain in a recording on the 9th Circuit U.S. Court of Appeals website. He was speaking to Baker Marquardt attorney Ryan Baker, who represented FilmOn X -- formerly Aereokiller. Broadcasters sought the injunction against FilmOn for retransmitting Los Angeles broadcast TV stations over the Internet without their consent, which the broadcasters said violates copyright law. The injunction was granted in a U.S. District Court in California, but appealed by FilmOn. “So long as we can determine that your client has come within the terms of existing copyright act, that’s enough,” O'Scannlain told Baker Tuesday.

O'Scannlain also asked Arnold Porter attorney Robert Garrett, who represents NBCUniversal and other broadcasters, to explain why FilmOn’s technology isn’t new and therefore not bound by existing copyright laws. Other questions put to the attorneys by the three-judge panel focused on the dividing line between public and private performances and how FilmOn’s technology differs from other retransmission services. “Is there any other purpose to it, other than not falling within the statute? Anything economically, financially, technologically improving, or anything like that?” asked Judge Brian Cogan. Baker replied that FilmOn’s technology was designed to comply with the law.

"If it’s a congressional question, then [FilmOn] could win,” said Fletcher Heald broadcast attorney Harry Cole. That would mean the court believes it is legal under current copyright law for FilmOn to lease to its customers small individual antennas and DVRs controlled over the Internet, he told us. “The court could say there appears to be a loophole in the Copyright Act and these guys drove their truck through it.” Cole isn’t involved in the case.

O'Scannlain’s questions indicate the judge may see the case as the type of question better resolved through legislation, Cole said. An attorney connected with the case said it’s likely that O'Scannlain would write the court’s opinion on FilmOn’s appeal, because he’s the most senior judge in the case. The third judge in the case is Morgan Christen.

Many of the questions posed by the three-judge panel focused on similarities between the cases of FilmOn, competitor streaming-service Aereo and the precedent-setting remote DVR case Cablevision, which was the basis of the 2nd Circuit U.S. Court of Appeals findings in favor of Aereo (CD April 2 p8). Fox attorney Paul Smith argued that the Cablevision decision “went off the rails” and that FilmOn is different, because Cablevision was letting customers digitally record content it had licensed, while FilmOn has no license for its content. Garrett compared FilmON to cable and satellite providers, which have to pay retransmission fees to use broadcast content. It’s to FilmOn’s advantage to fight comparisons to cable and satellite, said Cole, since classification as a similar service would mean it and Aereo should pay retrans consent fees, and FilmOn is “trying desperately to get itself out of the shadow” of other authorized services retransmitting broadcast TV.

Broadcasters and FilmOn also tangled in U.S. District Court in Washington, D.C., late last week, as they traded filings over another broadcaster-requested injunction against FilmOn (CD Aug 19 p9). In a response motion, broadcasters reiterated their argument that such an injunction, if granted, should apply nationwide rather than just in the D.C. Circuit. “A nationwide injunction is mandated by the Copyright Act and necessary to end the irreparable harm caused by FilmOn X’s unlawful acts, which are occurring throughout the country,” said the broadcasters. (mtayloe@warren-news.com)