Fox Television Stations, Inc. v. Aereokiller, LLC
851 F.3d 1002
9th Cir.2017Background
- FilmOn (FilmOn X) captured over‑the‑air broadcast programming via antennas and retransmitted it over the Internet to paying subscribers without copyright holders’ consent.
- Broadcasters (Fox and others) sued for copyright infringement; Supreme Court precedent (Aereo) held similar Internet retransmissions constitute public performances.
- FilmOn defended by claiming it qualified as a “cable system” under 17 U.S.C. § 111 and thus was entitled to a compulsory license if it paid statutory fees.
- The district court granted partial summary judgment to FilmOn, ruling it could be a § 111 “cable system” and permitting immediate appeal.
- The Copyright Office had long taken the position (by rulemaking, reports, and testimony) that § 111 applies only to localized transmission media and does not cover Internet‑based retransmission services; the Office refused to accept FilmOn’s royalty filings.
- The Ninth Circuit found § 111 ambiguous on the question presented, deferred to the Copyright Office under Skidmore/Mead factors, and reversed the district court, holding Internet retransmission services are not entitled to the § 111 compulsory license.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a service that captures over‑the‑air broadcasts and retransmits them over the Internet qualify as a “cable system” under 17 U.S.C. § 111? | Fox: A “cable system” must encompass the whole facility that both receives and transmits, and FilmOn uses the Internet (not under its control), so it is not a cable system. | FilmOn: § 111 is technology‑agnostic; any facility that retransmits broadcast signals by ‘‘wires, cables, microwave, or other communications channels’’—including the Internet—qualifies. | Held: Statute ambiguous; deference to Copyright Office persuasive—Internet‑based retransmitters are not “cable systems” under § 111. |
| Is § 111’s phrase “other communications channels” broad enough to include the Internet? | Fox: Congress intended localized, infrastructure‑based channels; ejusdem generis limits ‘‘other communications channels’’ to media like wires/cables/microwave. | FilmOn: The Transmit Clause and broad statutory language support reading ‘‘other communications channels’’ to encompass the Internet. | Held: Reasonable to read ‘‘other communications channels’’ as limited; the Office’s localized‑media interpretation is persuasive. |
| What level of deference should be afforded the Copyright Office’s interpretation? | Fox: Defer to the Copyright Office (its longstanding rulemaking and consistent views). | FilmOn: Argues for less deference or that the statute’s plain text controls. | Held: Applied Skidmore/Mead factors (but result would be same under Chevron); gave persuasive weight to the Office’s long, consistent, reasoned position. |
| Does applying § 111 to Internet retransmitters align with statutory purpose and legislative history? | Fox: § 111 aims to balance access and copyright owner rights, originally intended for localized cable systems; expanding to Internet would upset that balance and risk treaty issues. | FilmOn: Modernizing § 111 to be technology‑neutral is consistent with statutory goals and Aereo’s technology‑neutral holding under the Transmit Clause. | Held: Competing policy arguments leave the text ambiguous; however, considering history, structure, and the Office’s consistent position, exclusion of Internet services better preserves the statutory balance. |
Key Cases Cited
- American Broad. Cos. v. Aereo, 134 S. Ct. 2498 (2014) (Internet‑based retransmissions are public performances)
- Teleprompter Corp. v. Columbia Broad. Sys., 415 U.S. 394 (1974) (pre‑Act cases on cable liability)
- Fortnightly Corp. v. United Artists Television, 392 U.S. 390 (1968) (pre‑Act cable cases)
- ivi, Inc. v. WPIX, Inc., 691 F.3d 275 (2d Cir. 2012) (holding Internet retransmitters are not § 111 cable systems)
- Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (agency deference framework)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretations depends on persuasiveness)
- United States v. Mead Corp., 533 U.S. 218 (2001) (Skidmore factors guide deference)
- Barnhart v. Sigmon Coal Co., 535 U.S. 212 (2002) (agency interpretation bolstered by congressional acquiescence)