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.


Continue Reading Oral Arguments Tee Up Widely Anticipated 9th Circuit Decision in “Aereokiller” Case

A federal appeals court this week upheld a preliminary injunction against an online service that streamed live broadcast television programming to subscribers.

ivi, Inc. launched its television-streaming service in September 2010, and by early 2011 it was retransmitting the signals of dozens of TV stations from New York, Seattle, Chicago and Los Angeles.  Broadcasters and other content owners — including ABC, CBS, NBC, Fox, Univision, PBS, and Major League Baseball — sued ivi for copyright infringement and asked a New York federal district court to order ivi to halt its operations while the suit was pending. ivi argued it was entitled to the compulsory copyright license available to cable systems under federal law.  The district court granted an injunction against ivi’s service in February 2011, and ivi appealed to the U.S. Court of Appeals for the Second Circuit.

In this week’s decision, the Second Circuit upheld the injunction, finding that ivi was not a cable system and thus was not entitled to a compulsory license. The Second Circuit concluded that the statute’s legislative history and the Copyright Office’s consistent interpretation both showed that Congress intended the compulsory license to apply only to localized retransmission services, not national or global services such as ivi’s.
Continue Reading Appeals Court: TV-Streaming Service Not “Cable System” Under Copyright Act

Last week, a federal district court declined to enjoin Aereo’s “Watch Now” streaming service pending the outcome of a full trial in the copyright infringement law suit filed by the major networks and broadcast stations serving the New York DMA against Aereo. The parties sought to enjoin Aereo from streaming their programming for the duration of the trial because, they argued, they were likely to succeed on the merits. The court’s denial of their request for a preliminary injunction means that Aereo is free to continue with it service for the duration of the trial. The decision adds to the confusion around the degree to which broadcast signals may be streamed online and to mobile devices.

In last week’s decision, the court agreed with Aereo that its “Watch Now” streaming service works much like the remote storage DVR (“RS-DVR”) service offered by Cablevision and which the Second Circuit upheld against claims of copyright infringement in a separate decision last year. The RS-DVR service at issue in that case stored programming designated by consumers for recording on servers maintained remotely by Cablevision. Consumers could playback those programs through their home television sets using a remote control and a standard cable box equipped with the RS-DVR software. Key to the finding that the RS-DVR did not infringe upon copyright was the fact that when a consumer selected a program to be recorded to the RS-DVR, a “unique copy” of the program was saved for the consumer on the RS-DVR server. It was that “unique copy” which in turn was played back to the consumer when he or she requested it ― meaning there was no infringing “public performance.”  The Second Circuit’s decision is legally binding in New York, Vermont, and Connecticut.


Continue Reading District Court Declines To Shut Down Video Streaming Service