Fox Television Stations, Inc. v. Filmon X, LLC
150 F. Supp. 3d 1
D.D.C.2015Background
- FilmOn X operated an Internet service that captured over‑the‑air broadcast signals using many small antennas, created subscriber‑specific stored copies, and streamed programming nearly simultaneously or time‑delayed to paying users.
- Broadcasters (Fox, NBC, ABC, CBS, etc.) sued FilmOn X for copyright infringement, alleging unauthorized public performances in violation of 17 U.S.C. § 106(4).
- This Court previously granted a nationwide preliminary injunction (except within the Second Circuit); the Supreme Court in Aereo held that Aereo’s near‑simultaneous Internet retransmissions were public performances.
- After Aereo, FilmOn X amended to assert it qualified as a “cable system” entitled to the § 111 compulsory license; plaintiffs moved for partial summary judgment that FilmOn X infringed and is not entitled to § 111 relief; defendants cross‑moved.
- The Copyright Office has long taken the position that Internet‑based retransmitters are not § 111 cable systems; courts and Congress have treated satellite and IPTV differently via separate statutory schemes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FilmOn X is a “cable system” entitled to a § 111 compulsory license | § 111’s text and history limit the license to localized physical facilities (traditional cable); FilmOn X relies on the Internet and thus falls outside § 111 | Aereo’s analogy to cable systems supports a technology‑agnostic reading of § 111; Internet is an “other communications channel” and FilmOn X operates facilities that receive and retransmit signals | Held: Not a cable system. § 111(f)(3) requires a facility that both receives and directly retransmits to subscribers via wires/cables/microwave or similar localized channels; Internet‑based distribution is not such a facility; court defers to Copyright Office interpretation (Skidmore) denying § 111 eligibility. |
| Whether FilmOn X’s nearly‑simultaneous retransmissions infringe public performance rights | FilmOn X’s near‑simultaneous streaming are unauthorized public performances under the Transmit Clause | (Defendants effectively conceded after Aereo; argued procedural limits but not substantive denial) | Held: Infringement. Nearly‑simultaneous retransmissions are public performances under Aereo and § 101/Transmit Clause. |
| Whether FilmOn X’s time‑delayed (DVR‑like) retransmissions avoid public performance liability | Time‑shifted streams are like private transmissions or cloud storage directed by the user and thus nonpublic | Plaintiffs: Time‑delayed transmissions similarly make works available to the public and fall within the Transmit Clause (public spatially or temporally) | Held: Infringement. Time‑delayed retransmissions also constitute public performances under Aereo’s reasoning and the Transmit Clause. |
| Preclusion / res judicata from prior New York rulings | Prior New York adjudications and injunctions on earlier FilmOn entities bar re‑litigation of § 111 status | FilmOn X’s service differs materially (technology, mini‑antenna/DVR, time‑shift capability) and Aereo intervened, so claim preclusion does not apply | Held: No res judicata. Different transaction/technology and intervening change in law. |
Key Cases Cited
- American Broadcasting Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014) (Supreme Court held Aereo’s near‑simultaneous Internet retransmissions constituted public performances under the Transmit Clause)
- WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013) (Second Circuit decision before Supreme Court reversal on whether Aereo performed publicly)
- ivi, Inc. v. Comcast Corp., 691 F.3d 275 (2d Cir. 2012) (Second Circuit rejecting § 111 treatment for Internet retransmitters; cited for Copyright Office position)
- Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc., 836 F.2d 599 (D.C. Cir. 1988) (discusses cable compulsory license and agency deference in § 111 context)
- Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Remote‑storage DVR decision relevant to equipment‑supplier/volition issues)
- Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) (pre‑1976 view that CATV retransmissions were not public performances; background to 1976 amendments)
- Teleprompter Corp. v. Columbia Broadcasting Sys., Inc., 415 U.S. 394 (1974) (companion pre‑1976 case underpinning statutory changes)
- Satellite Broadcasting & Communications Ass’n of America v. Oman, 17 F.3d 344 (11th Cir. 1994) (upheld Copyright Office interpretation denying § 111 coverage to satellite carriers)
- A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (sets out elements for a copyright infringement claim)