23 March 2017
Reporter: Barney Dixon

FilmOn X fails to get judicial support

The US Court of Appeals for the Ninth Circuit has dismissed online service FilmOn X’s attempt to obtain a compulsory licence to the works it retransmits, finding it unable to be regarded as a ‘cable provider’ under the Copyright Act.

In another win for TV networks against retransmission technology, the Ninth Circuit rejected FilmOn’s claims that it still met the definition of a cable system despite transmitting over the internet, in its 21 March decision.

FilmOn had sought protection under Section 111 of the Copyright Act, which allows cable providers to retransmit “a performance or display of a work” that had been originally broadcast by someone else, so long as it pays a statutory fee to the Copyright Office.

But the Ninth Circuit said that when Section 111 was enacted in 1976, the cable industry “was a fledgling one”.

Congress responded to “economic conditions by enacting Section 111, which relieved cable systems of the need to sit down with every copyright holder before retransmitting their copyrighted broadcast works”.

“One could reasonably conclude that extending Section 111 to internet-based retransmission services would not further, and might in fact jeopardise” the values with which it was designed for,” the Ninth Circuit said.

FilmOn’s case follows the Supreme Court’s decision against online TV service Aereo in 2014.

The Supreme Court ultimately said that Aereo violated the public performance provision of the Copyright Act, which put an end to the online TV service and its use of arrays of thousands of tiny antennas to capture over-the-air transmissions.

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