Ryan Baker, of Baker Marquart, the law firm acting for OTT streaming service FilmOn X, has filed a petition for rehearing en banc (a session in which a case is heard before all the judges of a court [before the entire bench] rather than by a panel of judges selected from them) in respect of the copyright case brought against it by the major US networks.
In March 2017, the networks secured a favourable appeals court decision in a case centring on alleged illegal online retransmission of their programmes. FOX, ABC, NBC, and CBS have argued against 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. However, Circuit Judge Diarmuid O’Scannlain ruled that: “FilmOn and other Internet-based retransmission services are neither clearly eligible nor clearly ineligible for the compulsory licence, noting that the Copyright Office says they are not eligible. Because the office’s views are persuasive, and because they are reasonable, we defer to them”.
The petition says that the panel deferred to the “informal and inconsistent policy views of the Copyright Office”, which had imposed extratextual limitations on the statutory ‘cable system’ definition.
It points out the Office’s interpretations of the Copyright Act are not supported by the plain text or any formal rulemaking – but also that the Office is part of the legislative branch and lacks the constitutional or statutory authority to decide the law.
The petition also contends that the decision threatens the emerging field of Internet-based broadcast television retransmissions which will lead to artificially-high cable TV costs, reduction of consumer choice and frustrate the promotion of broad public access to broadcast television that is in the government’s interest.