FilmOn faces contempt motion
July 23, 2014
By Colin Mann
A federal judge in Manhattan has said that she’s likely to hold streaming video company FilmOn X in contempt of court for continuing to operate after the US Supreme Court’s ruling that Aereo’s streaming service infringed copyright.
“I’m inclined to grant the contempt motion,” said US District Court Judge Naomi Reice Buchwald following the hearing, as reported by MediaPost http://www.mediapost.com/publications/article/230525/filmon-likely-in-contempt-judge-says.html.
FilmOn X continued to stream major broadcasters’ shows to New Yorkers’ smartphones and tablets until around July 8, some two weeks after the Supreme Court reversed a pro-Aereo decision issued by the 2nd Circuit Court of Appeals. Aereo suspended its service June 28.
Buchwald told FilmOn X’s lawyer, Ryan Baker, that the company should have removed the broadcasters’ programmes as soon as the Supreme Court ruled against Aereo, stating: “The day the Supreme Court decided Aereo, you no longer had the cover of the 2nd Circuit’s opinion. On that day, FilmOn X should have pulled all of the content.”
The contempt hearing was a continuation of a 2010 lawsuit by broadcasters against FilmOn which resulted in an injunction prohibiting FilmOn from infringing broadcasters’ copyrights. At the time, FilmOn didn’t utilise the same antenna technology as Aereo.
Following Aereo’s entry into the OTT streaming market, FilmOn said that it would also use multiple-antenna technology, early in 2014, launching what it described as its ‘Teleporter’ technology.
In the wake of the Aereo ruling, FilmOn said it would operate under Section 111 of the Copyright Act 1976. “The Supreme Court ruling on ABC and Broadcasters v. Aereo on June 25, put an end to the use of remote antennas to stream broadcast signals, at least as a business plan for those who didn’t want to pay royalties,” said the company, claiming it was always willing to pay royalties and using Section 111 of the Copyright Act, would continue to provide local broadcast television from 18 markets to subscribers nationwide using its Teleporter technology.
Nevertheless, Judge Buchwald said that FilmOn X couldn’t decide unilaterally that it is a cable system – particularly in light of a 2011 New York federal appellate court ruling that stream content online were not cable systems.
“You don’t have the right to predict how the law is going to change when you’re subject to an injunction. There was no change in the law that gave FilmOn legal permission to do what it did,” she advised, adding that the Supreme Court couldn’t make it a cable company as if by magic.
The Judge is yet to issue a ruling officially on the contempt motion, or decide on what sanctions, if any, she will impose.