A three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments on Tuesday in the so-called “Aereokiller” litigation. The case tests whether services that allow subscribers to stream broadcast television on their computers and mobile devices infringe the exclusive right of copyright owners to publicly perform their copyrighted works. Specifically, the Ninth Circuit will decide whether to uphold a December 2012 district court decision granting a preliminary injunction sought by NBC, ABC, CBS, Fox, and others to stop FilmOn X LLC (formerly known as Aereokiller) from re-transmitting broadcast television to its subscribers without a license.
The key legal issue in the case is whether FilmOn’s re-transmission of broadcast TV programming constitutes a public performance or a private one. Copyright owners have the exclusive right to publicly perform their copyrighted works, but cannot stop the private performance of their works. At oral argument, counsel for FilmOn argued that the company provides only private performances, as it re-transmits broadcast TV programming to each of its subscribers via individual antennas and DVRs. As one of the judges on the Ninth Circuit panel observed, FilmOn appears to have chosen the individualized antenna and DVR system for the specific purpose of attempting to circumvent the prohibition on publicly performing copyrighted works without a license.