This past Thursday, U.S. District Judge George Wu ruled that FilmOn X LLC, a free internet-based television service, should be treated like a cable provider. Wu did, however, allow for an immediate appeal in the 9th U.S. Circuit Court of Appeals. And you can bet your last dollar that Fox Television Stations (the plaintiff in this case) will avail itself of that option.
But if (and it’s a big if) this ruling were to be upheld in higher courts, it would have enormous implications for broadcast television.
Like the now-defunct Aereo — which was shut down after a June 2014 Supreme Court ruling that determined it violated broadcasters’ copyrights — FilmOn allows users access to one of thousands of remote antennae, which capture TV signals in much the same way as the “rabbit ears” of yore, and then broadcasts them online so that users can watch the content at their leisure in DVR format from virtually any location.
The question that has long carried throughout this debate is whether or not allowing over-the-air access to the masses is tantamount to (illegal) redistribution, or just a clever way of doing business within the framework of the law.
Wu’s ruling, legally-speaking, says it’s the latter, but the decision is just the latest battle in a war that has been raging in the courts since 2011. Back in 2013, for instance, a host of plaintiffs (Fox, CBS Corp, NBCUniversal, etc.) succeeded in securing a nationwide injunction against FilmOn, preventing the company from offering its antenna/DVR service. Despite Thursday’s decision, that injunction still stands — a sign that even the courts are deeply conflicted about this issue.
Even as viewers consume an ever-larger share of video content via mobile devices, broadcast television remains reluctant to embrace un-tethered entertainment and resolved to fight internet-based options tooth and nail.
Reuters reports that, when interviewed about the recent ruling, FilmOn X Lawyer Ryan Baker said “The broadcasters have been trying to keep their foot on the throat of innovation,” and added “the court’s decision today is a win for technology and for the American public.”
A statement by Fox Networks, on the other hand, said the decision “contravenes all legal precedent.”
We’ll bring you news of the appeal as it becomes available, but this is an ongoing legal quagmire that likely won’t be resolved anytime soon.