Not sure how this squares with the previous FCC ideas on VMVPDs. Aside from
that, no big deal. The market takes care of these things, in spite of
middlemen's interests.
Bert
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http://www.broadcastingcable.com/news/washington/ninth-circuit-reverses-filmon-x-decision/164275
Mar 21, 2017 12:56 PM ET
Ninth Circuit Reverses FilmOn X Decision
Defers to Copyright Office that internet retransmissions aren't analogous to
cable
By John Eggerton
In a victory for broadcasters, a three-judge panel of the U.S. Court of Appeals
for the Ninth Circuit has reversed a lower court decision that FilmOn X was
eligible for the same compulsory license to TV programming as cable operators
have.
In the decision, released Tuesday, the appeals court held that "a service that
captures copyrighted works broadcast over the air, and then retransmits them to
paying subscribers over the Internet without the consent of the copyright
holders, is not a 'cable system' eligible for a compulsory license under the
Copyright Act."
Broadcasters led by Fox had challenged the lower court ruling.
That came only days after FilmOn X argued in the U.S. Court of Appeals for the
D.C. Circuit that another lower court decision denying them the license should
be overturned.
The Ninth Circuit essentially deferred to the Copyright Office's conclusion
that internet-based retransmission services are not eligible for the blanket
license, indicating the status of FilmOn X's eligibility was hardly
cut-and-dried.
"FilmOn and other Internet-based retransmission services are neither clearly
eligible nor clearly ineligible for the compulsory license," the court said.
"The Copyright Office says they are not eligible. Because the Office's viewers
are persuasive, and because they are reasonable, we defer to them."
The United States District Court for the Central District of California,
rendered by judge George Wu, had awarded partial summary judgment to FilmOn X,
saying it was entitled to the license. Wu had also cited the Supreme Court,
which analogized-in the Aereo case-that internet retransmissions were like
cable retransmissions.
"FilmOn X is disappointed with the Ninth Circuit's opinion, which allows the
Copyright Office to further its narrow agenda rather than give meaning to the
plain language of the relevant statute," said Ryan Baker of Baker Marquart, who
represents FilmOn X. "FilmOn X continues to believe Congress intended that
cable companies could utilize modern communications channels to deliver
broadcast television to the American public."
"A legal result where online video services have the same copyright liabilities
as traditional cable services (following the Supreme Court's Aereo decision),
but not the same copyright benefits (the compulsory license), is not a good
result for consumers or competition," said Public Knowledge senior counsel John
Bergmayer.
"NAB is very pleased with the Ninth Circuit's decision in the FilmOn case,"
said National Association of Broadcasters EVP communications, Dennis Wharton.
"The court reached the correct conclusion as supported by NAB's amicus brief."
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