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The FilmOn X internet service can’t stream TV broadcasts under a federal law meant for cable services, a federal appeals court ruled March 21 ( Fox Television Stations, Inc. v. AereoKiller, LLC , 9th Cir., 15-56420, 3/21/17 ).
Under the compulsory license system, TV broadcasters must allow a cable TV system to rebroadcast their shows, so long as it pays royalties set by the Copyright Office.
This is the latest in a series of setbacks for internet streaming services that want to retransmit over-the-air TV broadcasts without having to negotiate permission or royalty rates with the original broadcasters. The company had hoped that it could take advantage of the compulsory license system for cable TV providers to streamline the process.
The U.S. Court of Appeals for the Ninth Circuit overturned a federal district court’s ruling allowing FilmOn X, formerly known as AereoKiller, to rebroadcast signals by big four networks Fox, NBC, ABC and CBS by claiming it was a cable TV service.
The rejected ruling has been the only decision in the streaming service’s favor. Federal courts in New York and the District of Columbia have already rejected FilmOn X’s argument that it is eligible for a cable license.
The court said that the federal copyright statute’s language was ambiguous on this point, but it deferred to a conclusion by the Copyright Office that internet-based retransmission is not eligible for the cable compulsory license.
The Ninth Circuit’s ruling avoids a split among federal courts for now.
The court’s decision follows a 2014 Supreme Court ruling that put an end to the Aereo streaming service, which streamed over-the-air shows to subscribers’ mobile devices.
FilmOn X’s lawyer said the company disagreed with the Ninth Circuit’s conclusion. The ruling “allows the Copyright Office to further its narrow agenda rather than give meaning to the plain language of the relevant statute,” Ryan Baker of Baker Marquardt LLP told Bloomberg BNA in an email message. He said that the company hopes that appeals of the New York and D.C. cases will bring more favorable results. The broadcasters’ lawyers did not respond immediately to a request for comment from Bloomberg BNA.
A service called Aereo, first offered in 2012, became popular when it charged mobile users to watch traditional network TV, without paying anything to the TV broadcasters.
The Supreme Court said that Aereo was infringing broadcasters’ rights, because its streaming counted as public performances. Private performances, such as people inviting friends and family to watch TV with them at home, don’t require permission from the copyright holder.
Ever since the high court killed the Aereo mobile TV streaming service, FilmOn X has tried to argue that it should be able to claim the status of a cable TV system.
Hogan Lovells US LLP, Jenner & Block LLP and Arnold & Porter LLP represented the broadcasters. Baker Marqart LLP represented FilmOn X.
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