Public interest advocacy bodies EFF and Public Knowledge have filed an amicus curae (friend of court) brief in support of Internet-based OTT service FilmOn X’s challenge of an October 2015 D.C. US District Court decision back that it was not entitled to a compulsory licence, in the same way as multichannel video programming distributors (MVPDs)., and the two groups backing FilmOn X.
In the brief, filed with the US Court of Appeals for the District of Columbia, the groups contend that, the Copyright Office’s repeated statements against the applicability of Section 111 of the Copyright Act to Internet-based TV redistribution services are contrary to Congressional intent, and that “a facility that ‘receives signals transmitted or programs broadcast by one or more television broadcast stations…and makes secondary transmissions of such signals or programs by wires…or other communications channels to subscribing members of the public’ is a ‘cable system’ under the Copyright Act and should have access to the [compulsory] license.”
They say that clarifying that Section 111 applies to ‘cable systems’ as defined in that section without regard to the specific technologies used, will uphold Congress’s intent. It will also promote innovation and competition by ensuring that copyright law does not privilege incumbent video distribution services over new entrants using cost-effective new technologies.
The FCC is currently considering a proposed rulemaking that would define some over-the-top distributors as MVPDs.