Circuits May Split on Fate of Streaming TV

PASADENA, Calif. (CN) - The 9th Circuit met yesterday to determine the fate of a service that streams live television programming over the Internet.

Alki David, an heir to the Coca-Cola fortune, owns the mini-antenna technology at issue in the California case. The latest iteration of the lawsuit targets David's companies FilmOn X and Aereokiller, but not a third service called BarryDriller.

The names of David's entities are confounding for some because of their similarity to the competing service, Aereo, and its owner, director of the Coca-Cola Co. Barry Diller.

While courts on the East Coast have refused to pull the plug on Diller's Aereo, a federal judge in Los Angeles partially enjoined Aereokiller this past December.

Ryan Baker with Baker Marquart fought that injunction before a three-judge panel of the 9th Circuit on Tuesday.

A ruling for the "discreet" and "unique" mini-antenna technology is in the "public's interest," Baker argued, pointing out that Film On X merely allows viewers to access network programming in the same manner as someone with a traditional antenna sold at a retail store.

The Transit Clause of the Copyright Act allows a "private transmission" of the network's content that makes the technology lawful, the Los Angeles lawyer contended.

"The copyright holder cannot dictate private performance," under the act, Baker said.

U.S. District Judge Brian Cogan, sitting on the panel by designation from the Eastern District of New York, seemed unconvinced.

"Your system is pretty darn clever isn't it?" Cogan asked. "Essentially you're doing the same thing [as the cable companies]. You just have engaged in the mechanical set-up, of having dedicated antenna for each user as opposed to one antenna for all users. That's the whole distinction that this case rises or falls on, right?"

But Baker said the technology should not be viewed as some "Rube Goldberg-like contrivance." Instead, he asserted, the courts should regard it as innovative technology.

"All the transmissions at issue here are free to air," Baker said.

Fox attorney Paul Smith with Los Angeles law firm Jenner & Block told the panel that the Copyright Act requires FilmOn X and Aereokiller to have a license, just like the cable companies.

"They're a live retransmission business exactly like cable," Smith said. "They do the same thing, and they make money off of it."

NBC attorney Robert Garret disputed Baker's claim that the service offers a "private performance."

"Singing in the shower is a private performance," Garrett said. "Sending 50,000 people the same program at the same time is not."

In his reserve time, Ryan urged the court against widening "geographic scope" of the injunction on FilmOn X's services.

"It would violate comity for this court to seek to impose a nationwide injunction," Baker said.

Judge Diarmuid O'Scannlain, appearing via video linkup, and Judge Morgan Christen joined Cogan on the panel.

Another battle between the networks and David's companies is ongoing in Washington, D.C.

Diller has claimed meanwhile that David's company violates his publicity rights.

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