Networks Win Battle Against Film Streamer

     WASHINGTON (CN) – In “a clash between two important national policies and interests,” a federal judge found that FilmOn X violated TV networks’ copyrights by storing and streaming their content to paid subscribers via the Internet.
     “This case involves a clash between two important national policies and interests,” U.S. District Judge Rosemary Collyer wrote in her Nov. 12 ruling.
     “On the one hand, there is the need to protect and reward copyright owners for creating valuable intellectual property – here, original television programming. On the other hand, it is important to promote competition and ensure broad public access to diverse television programming.”
     ABC, CBS, NBC and Fox sued FilmOn X for streaming their copyrighted programs, virtually at the same time they were broadcast live.
     FilmOn X then filed a motion seeking a federal broadcasting license, and claimed its time-delayed programming is legal under the federal Transmit Clause.
     Collyer disagreed.
     “An unauthorized secondary transmission constitutes a performance regardless of the time delay,” Collyer wrote. “In other words, just because the subscriber has to click a button to initiate the streaming does not mean that FilmOn X does not perform within the meaning of the Transmit Clause.”
     Collyer also said the streamed content had not been obtained legally.
     “Unlike a cloud storage device, FilmOn X did not allow servers to store lawfully acquired content and play it back on command. Rather, it captured broadcast signals and saved individual copies of the over-the-air content” for later streaming, Collyer wrote.
     “This difference is important,” Collyer said, because FilmOn X transmits to “large numbers of paying subscribers who lack any prior relationship to the works.”
     Nor did she buy FilmOn X’s argument that its Internet transmissions are private, because they are made to individual subscribers, rather than the general public.
     “The fact that the transmissions originate from individual copies and are streamed to individual users does not render the transmission ‘private,'” the judge ruled, because other subscribers get the same programming.
     Collyer denied FilmOn X’s motion for summary judgment and partially granted the networks’ motion for summary judgment, finding that FilmOn X is liable for infringing the networks’ exclusive right to public performance.
     Collyer also denied FilmOn X’s motion for declaratory judgment that it is entitled to a broadcast license to retransmit the networks’ proprietary programming, and she denied without prejudice the networks’ copyright infringement claim against FilmOn X.

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