Networks win further FilmOn X court battle
March 22, 2017
By Colin Mann
The major US television networks have secured a favourable appeals court victory in a case centring on alleged illegal online retransmission of their programmes. FOX, ABC, NBC, and CBS have argued against OTT service FilmOn X’s retransmission in the courts for close to five years.
FilmOn X contended that it was a cable system under the Copyright Act of 1976, and that it should be allowed to obtain a compulsory licence to retransmit the networks’ content. It said ruling in the broadcasters’ favour would dampen innovation and new technology.
“FilmOn and other Internet-based retransmission services are neither clearly eligible nor clearly ineligible for the compulsory licence,” ruled Circuit Judge Diarmuid O’Scannlain. “The Copyright Office says they are not eligible. Because the office’s views are persuasive, and because they are reasonable, we defer to them.” Circuit Judges Johnnie Rawlinson and Consuelo María Callahan joined O’Scannlain’s opinion.
Ryan Baker of Baker Marquart, the law firm acting for FilmOn X, said the service was disappointed with the Ninth Circuit’s opinion, suggesting it allowed the Copyright Office to further its narrow agenda rather than give meaning to the plain language of the relevant statute. “FilmOn X continues to believe Congress intended that cable companies could utilise modern communications channels to deliver broadcast television to the American public,” he said in a Statement.
“Similar issues are currently before the Seventh and D.C. Circuit Courts of Appeal. FilmOn X remains hopeful that those appellate courts will apply the statute as written and shun any attempt to impose extratextual limitations on the compulsory licence,” he concluded.