FilmOn X Fires Back at Broadcasters in D.C. Circuit

Broadcast & Cable‘s John Eggerton reports on Baker Marquart client FilmOn X’s continued push to get a compulsory copyright license to retransmit broadcast television. FilmOn X recently filed its reply brief in the appal of a November 2015 District of Columbia District Court ruling which found FilmOn X not entitled to the compulsory license. That ruling contradicted an earlier ruling of a California Federal Court, which found FilmOn X eligible for the license. (A compulsory license would allow FilmOn X to deliver TV station programming from the major networks at a government-set rate, rather than having to negotiate for it individually.)

According to Eggerton:

A California District Court judge ruled that FilmOn X was such a service and qualified for the license, which the broadcast networks challenged. Neither case has been resolved, so FilmOn X is asking the D.C. court to stay the U.S. District Court decision until that California challenge is resolved in the Ninth Circuit.

FilmOn had also asked the U.S. District court to stay its decision until the California case was resolved but was unsuccessful. The company says that court abused its discretion by denying the stay.

“The [U.S.] district court failed to examine the close relationships between the plaintiffs in the two parallel actions, which would have revealed no meaningful differences between them,” FilmOn X said this week. “The district court then abused its discretion when it refused a stay on the ground it might decide this case ‘slightly differently’ than the California court. The district court reached the opposite conclusion. To alleviate that conflict, this Court should vacate the district court’s order and stay this action pending final resolution of the California Action. In any event, FilmOn X is eligible for a cable system license.”

In the U.S. District Court decision, Judge Rosemary Collyer ruled that FilmOn X, which streamed on demand and day-and-date video online, was liable for infringing the plaintiff’s (Fox and other broadcast networks) performance right under the Copyright Act and was not eligible for the compulsory license.

The issue is whether online video distributors are effectively MVPDs eligible for the statutory license that allows them to avoid negotiating for individual network broadcast content. That issue is unsettled, with the Copyright Office saying they aren’t eligible but also saying that could change depending on what the courts and the FCC decide. The FCC is mulling defining some over-the-top distributors as MVPDs and FCC chairman Tom Wheeler has pointed to the need to prevent “old rules” from hampering online video competitors like FilmOn. But the FCC has also put that decision on the back burner while the marketplace develops.

California district judge George Wu ruled last year that FilmOn X was entitled to the compulsory license. Fox et al. challenged that ruling in the Ninth Circuit Court of Appeals and the National Association of Broadcasters slammed the decision.

Oral argument has not yet been scheduled in the D.C. Circuit Court of Appeals.

Opposing FilmOn’s bid are Fox, Sinclair, CBS, NBC’s WRC-TV Washington, Disney/ABC, and Tegna.

Read the full Broadcast & Cable story here.